Benjamin N. Cardozo

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American lawyer and jurist who served on the New York Court of Appeals from 1914 to 1932 and as an Associate Justice of the Supreme Court of the United States from 1932 until his death in 1938. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his philosophy and vivid prose style.

Born in New York City, Cardozo passed the bar in 1891 after attending Columbia Law School. He won an election to the New York Supreme Court in 1913 but joined the New York Court of Appeals the following year. He won election as Chief Judge of that court in 1926. As Chief Judge, he wrote majority opinions on cases such as Palsgraf v. Long Island Railroad Co.

In 1932, President

Benjamin was named for his uncle, Benjamin Nathan, a vice president of the New York Stock Exchange, who was murdered in 1870. The case was never solved.^[4] Among their many cousins, given their deep history in the US, was the poet Emma Lazarus. Other earlier relations include Francis Lewis Cardozo (1836–1903), Thomas Cardozo, and Henry Cardozo, free men of color of Charleston, South Carolina. Francis became a Presbyterian minister in New Haven, Connecticut, after education in Scotland, and was elected Secretary of State of South Carolina during the Reconstruction era. Later he worked as an educator in Washington, DC, under a Republican administration.^[5]

When Benjamin and Emily were young, their mother Rebecca died. The twins were raised during much of their childhood largely by their sister Nell, who was 11 years older. Benjamin remained devoted to her throughout his life.

Education

One of Benjamin’s tutors was

At age 15, Cardozo entered Columbia University,^[6] where he was elected to Phi Beta Kappa,^[7] earning his BA in 1889 and his MA in 1890.^[8] He was admitted to Columbia Law School in 1889. Cardozo wanted to enter a profession that could enable him to support himself and his siblings, but he also hoped to restore the family name, which had been sullied by his father’s actions as a judge. Cardozo left law school after two years without a law degree,^[9][10] as only two years of law school was required to sit for the bar during this era in New York.

Legal career

Law practice

Cardozo passed the bar examination in 1891 and began practicing appellate law alongside his older brother.^[6] Benjamin Cardozo practiced law in New York City until year-end 1913 with Simpson, Warren and Cardozo.^[6][11]

Interested in advancement and restoring the family name, Cardozo ran for a judgeship on the New York Supreme Court. In November 1913, Cardozo was elected by a large margin to a 14-year term on that court and took office on January 1, 1914.

New York Court of Appeals

In February 1914, Cardozo was designated to the New York Court of Appeals under the Amendment of 1899.^[12] He was reportedly the first Jewish person to serve on the Court of Appeals.

In January 1917, he was appointed by the governor to a regular seat on the Court of Appeals to fill the vacancy caused by the resignation of

In

His tenure was marked by a number of original rulings, in tort and contract law in particular. This is partly due to timing; rapid industrialization was forcing courts to look anew at old common law components to adapt to new settings.^[6]

In 1921, Cardozo gave the Storrs Lectures at

While on the Court of Appeals, he criticized the exclusionary rule as developed by the federal courts, saying: ”The criminal is to go free because the constable has blundered”. He noted that many states had rejected the rule, but suggested that the adoption by the federal courts would affect the practice in the sovereign states.^{[13][14][15][16]}

United States Supreme Court

On February 15, 1932, President

Cardozo was a member of the Three Musketeers, along with Brandeis and Stone, who were considered to be the liberal faction of the Supreme Court. In his years as an associate justice, Cardozo wrote opinions that stressed the necessity for the tightest adherence to the Tenth Amendment.

In his own words

Cardozo’s opinion of himself shows some of the same flair as his legal opinions:^[tone]

In truth, I am nothing but a plodding mediocrity—please observe, a plodding mediocrity—for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.^[22]

Honors

Cardozo received the honorary degree of LL.D. from several colleges and universities, including: Columbia (1915); Yale (1921); New York (1922); Michigan (1923); Harvard (1927); St. John’s (1928); St. Lawrence (1932); Williams (1932); Princeton (1932); Pennsylvania (1932); Brown (1933); and Chicago (1933).^[23]

Personal life

As an adult, Cardozo no longer practiced Judaism (he identified as an agnostic), but he was proud of his Jewish heritage.^[24]

Of the six children born to Albert and Rebecca Cardozo, only his twin sister Emily married. She and her husband did not have any children.

Constitutional law scholar Jeffrey Rosen noted in a New York Times Book Review of Richard Polenberg’s book on Cardozo:

Polenberg describes Cardozo’s lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, ”I never could give Nellie the second place in my life”.

In late 1937, Cardozo had a heart attack, and in early 1938, he suffered a stroke. He died on July 9, 1938, at the age of 68. He was buried in Beth Olam Cemetery in Queens.^[25][26]

Ethnicity

Cardozo was the second Jewish justice to be appointed to the Supreme Court. The first was Louis Brandeis, whose family was Ashkenazi.

Cardozo was born into the

• Schloendorff v. Society of New York Hospital, 105 N.E. 92 (1914) it is necessary to get informed consent from a patient before operation, but a non-profit hospital was not vicariously liable (the latter aspect was reversed in 1957)
• MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916) ending privity as a prerequisite to duty in product liability by ruling that manufacturers of products could be held liable for injuries to consumers even if they were not in privity.
• third party beneficiary
  law in a contract for marriage case.
• Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214 (1917) on an implied promise to do something constituting consideration in a contract.
• Martin v. Herzog, 126 N.E. 814 (1920) breach of statutory duty establishes negligence, and the elements of the claim includes proof of causation
• Jacob & Youngs v. Kent
  , 230 N.Y. 239 (1921), substantial performance of a contract does not lead to a right to terminate, only damages.
• Hynes v. New York Central Railroad Company, 131 N.E. 898 (1921), a railway owed a duty of care despite the victims being trespassers.
• Glanzer v Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425 (1922), a Caballero bean weighing dispute, with duties imposed by law but growing out of contract
• corporate veil
  cannot be pierced, even in favor of a tort victim unless domination of a subsidiary by the parent is complete.
• Wagner v. International Railway, 232 N.Y. 176 (1926) the rescue doctrine. ”Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had”.
• fiduciary duty
  of business partners is, ”Not honesty alone, but the punctilio of an honor the most sensitive”.
• Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928) the development of the concept of the proximate cause in tort law.
• Jessie Schubert v. August Schubert Wagon Company, 164 N.E. 42 (1929) Respondeat superior and spousal immunity relationship are not related.
• Murphy v. Steeplechase Amusement Park, 166 N.E. 173 (1929) denied a right to recover for knee injury from riding ”The Flopper” funride since the victim ”assumed the risk”.
• Ultramares v. Touche
  , 174 N.E. 441 (1931) on the limitation of liability of auditors

US Supreme Court

• Nixon v. Condon, 286 U.S. 73 (1932) all white Texas Democratic Party primary unconstitutional
• Welch v. Helvering, 290 U.S. 111 (1933) which concerns Internal Revenue Code Section 162 and the meaning of ”ordinary” business deductions.
• Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) dissenting from a narrow interpretation of the Commerce Clause.
• commerce clause
  power.
• Carter v. Carter Coal Company
  , 298 U.S. 238 (1936) dissenting over the scope of the Commerce Clause.
• Steward Machine Company v. Davis
  , 301 U.S. 548 (1937) unemployment compensation and social security were constitutional
• Helvering v. Davis, 301 U.S. 619 (1937) social security not a contributory programme
• Palko v. Connecticut, 302 U.S. 319 (1937) the due process clause incorporated those rights which were ”implicit in the concept of ordered liberty”.

Schools, organizations, buildings and ships named after Cardozo

• Benjamin N. Cardozo School of Law at Yeshiva University in New York City
• Benjamin N. Cardozo Chapter of Phi Alpha Delta Law Fraternity at The Catholic University of America Columbus School of Law in Washington, D.C.^[32]
• Cardozo College, a dormitory building at Stony Brook University in Stony Brook, New York
• Benjamin N. Cardozo Lodge #163, Knights of Pythias^[33]
• Benjamin N. Cardozo High School in the borough of Queens in New York City
• The Cardozo Hotel, 1300 Ocean Drive, Miami, Florida
• The Liberty ship SS Benjamin N. Cardozo was built by California Shipbuilding Corporation and launched on April 5, 1943 and later renamed USS Serpens.
• The Cardozo Jewish Legal Society is an affinity group at Albany Law School and other law schools dedicated to representing the interests of the school's Jewish students.

Bibliography

• Cardozo, Benjamin N. (1921), The Nature of the Judicial Process, The Storrs Lectures Delivered at Yale University.
• Cardozo, Benjamin N. (1924), The Growth of the Law, 5 Additional Lectures Delivered at Yale University.
• Cardozo, Benjamin N. (1928). The Paradoxes of Legal Science.
  OCLC 843833
  .
• Cardozo, Benjamin N. (1931), Law and Literature and Other Essays and Addresses.
• Cardozo, Benjamin N. (1889), The Altruist in Politics, commencement oration at Columbia College, Gutenberg Project version.

See also

• Demographics of the Supreme Court of the United States
• List of justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States (Seat 2)
• List of United States Supreme Court justices by time in office
• United States Supreme Court cases during the Hughes Court
• List of first minority male lawyers and judges in New York

Notes

1. ^ ^{a b} "Justices 1789 to Present". Washington, D.C.: Supreme Court of the United States. Retrieved February 15, 2022.
2. ^
   ISBN 0-674-09645-2. Archived
   from the original on 2020-12-18. Retrieved 2020-10-01.
3. ^ "Mark Sherman, 'First Hispanic justice? Some say it was Cardozo', The Associated Press, 2009". Archived from the original on 2020-11-14. Retrieved 2016-11-10.
4. ISBN 081425022X
   .
5. ^ Richardson, Joe M. ”Francis L. Cardozo: Black educator during reconstruction”. Journal of Negro Education 48.1 (1979): 73–83. in JSTOR Archived 2020-07-27 at the Wayback Machine
6. ^
   ISBN 978-0-618-32969-4
   . Retrieved 2008-10-21.
7. ^ "Supreme Court Justices Who Are Phi Beta Kappa Members" (PDF). PBK.org. Phi Beta Kappa. Archived from the original (PDF) on 2011-09-28. Retrieved October 4, 2009.
8. ^ "Columbia university alumni register, 1754-1931, compiled by the Committee on general catalogue". HathiTrust. Retrieved 2024-02-26.
9. ^ Levy, Beryl Harold (November 2007). "Realist Jurisprudence and Prospective Overruling". New York Review of Books. LIV (17): 10, n. 31.
10. ^ "Cardozo, Benjamin N". Great American Judges: An Encyclopedia. ABC-CLIO. 2003. p. 155.
11. ISBN 978-0300113006. Archived
    from the original on 21 November 2016. Retrieved 2 December 2017.
12. ^ Designation Archived 2021-03-08 at the Wayback Machine, The New York Times, February 3, 1914
13. ^ People of the State of New York v. John Defore, 150 N.E. 585 (1926).
14. ^ Stagg, Tom, Judge, United States District Court Western District of Louisiana (July 15, 1991). "Letter to the Editor". The New York Times. Shreveport, La. Archived from the original on March 9, 2021. Retrieved January 7, 2013.{{cite news}}: CS1 maint: multiple names: authors list (link)
15. ISBN 978-0976682608
    .
16. ISBN 978-0674960527
17. ^ ^{a b} McMillion, Barry J. (January 28, 2022). Supreme Court Nominations, 1789 to 2020: Actions by the Senate, the Judiciary Committee, and the President (PDF) (Report). Washington, D.C.: Congressional Research Service. Retrieved February 15, 2022.
18. ^ "Cardozo is named to Supreme Court". The New York Times. 1932-02-16. Archived from the original on 2018-07-20. Retrieved 2018-07-23.
19. ISBN 978-0-7432-7226-1
    . Retrieved 2008-10-20.
20. ^ (The New York Times, March 2, 1932, p. 13)
21. ^ (Handler, 1995)
22. ^ As quoted in Nine Old Men (1936) by Drew Pearson and Robert Sharon Allen, p. 221.
23. ^ Death Notices: Supplement to General Alumni Catalog. Ann Arbor, MI: University of Michigan. 1939. p. 16. Archived from the original on 2021-05-06. Retrieved 2020-10-01.
24. ^ Benjamin Cardozo. Archived 2016-10-21 at the Wayback Machine, Jewish Virtual Library,
25. ^ "Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook". Archived from the original on 2005-09-03. Retrieved 2013-11-24.{{cite web}}: CS1 maint: bot: original URL status unknown (link) Supreme Court Historical Society at Internet Archive.
26. ^ See also, Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 – 41 (19 Feb 2008), University of Alabama.
27. ^ ^{a b} "'Cardozo was first, but was he Hispanic?,' USA Today, May 27, 2009". May 27, 2009. Archived from the original on 2009-05-30. Retrieved 2009-06-02.
28. ^ "Mark Sherman, 'First Hispanic Justice? Some Say It Was Cardozo,' Associated Press May 26, 2009". ABC News. Archived from the original on August 21, 2009. Retrieved 2009-06-02.
29. ^ "Robert Schlesinger, Would Sotomayor be the First Hispanic Supreme Court Justice or Was it Cardozo? US News & World Report May 29, 2009". Archived from the original on May 29, 2009. Retrieved August 24, 2017.
30. ^ ^{a b} "Neil A. Lewis, 'Was a Hispanic Justice on the Court in the '30s?,' The New York Times, May 26, 2009". The New York Times. May 27, 2009. Archived from the original on June 30, 2012. Retrieved April 26, 2010.
31. ISBN 978-0-8147-8632-1. Archived
    from the original on 2020-07-27. Retrieved 2016-02-19.
32. ^ "Law School Chapter Locator".
33. ^ * * * Benjamin N. Cardozo Lodge Archived 2021-02-24 at the Wayback Machine at www.cardozospeaks.org

Further reading

• Abraham, Henry J. (1999). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Revised ed.). Lanham: Rowman & Littlefield.
  ISBN 0-8476-9604-9
  .
• Cardozo, Benjamin N. (1957). An Introduction to Law. Cambridge: Harvard Law Review Association. (Chapters by eight distinguished American judges).
• Cunningham, Lawrence A. (1995). "Cardozo and Posner: A Study in Contracts". William & Mary Law Review. 36: 1379.
  SSRN 678761
  .
• Cardozo, Benjamin N. [1870–1938]. Essays Dedicated to Mr. Justice Cardozo. [N.p.]: Published by
  Arthur L. Corbin, Felix Frankfurter. Also includes a reprint of Cardozo’s essay ”Law And Literature” with a foreword by James M. Landis
  .
• Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (
  ISBN 1-56802-126-7
  .
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L. (eds.). The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers.
  ISBN 0-7910-1377-4
  .
• Yale Law Journal
  48 (1939): 458–488.
• Hall, Kermit L., ed. (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press.
  ISBN 0-19-505835-6
  .
• Handler, Milton (1995). "Stone's Appointment by Coolidge". The Supreme Court Historical Society Quarterly. 16 (3): 4.

External videos
Presentation by Andrew L. Kaufman on Cardozo, June 14, 1998, C-SPAN

• Kaufman, Andrew L. (1998). Cardozo. Cambridge, MA: Harvard University Press.
  ISBN 0-674-09645-2
  .
• Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books.
  ISBN 0-87187-554-3
  .
• Polenberg, Richard (1997). The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Massachusetts:
  ISBN 978-0-674-96051-0
  .
• ISBN 0-226-67555-6
  .
• Seavey, Warren A., Mr. Justice Cardozo and the Law of Torts,
  Yale Law Journal
  48 (1939): 390–425
• Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590.
  ISBN 0-8153-1176-1
  .

External links

• Benjamin Nathan Cardozo at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
• Works by Benjamin Nathan Cardozo at Project Gutenberg
• Works by or about Benjamin N. Cardozo at Internet Archive
• Works by Benjamin N. Cardozo at LibriVox (public domain audiobooks)
• Benjamin Cardozo at Michael Ariens.com.
• History of the Court, the Hughes Court at Supreme Court Historical Society.
• Listing and portrait of Benjamin N. Cardozo, New York Court of Appeals judge at Historical Society of the Courts of the State of New York.
• Oyez Project, U.S. Supreme Court media, Benjamin N. Cardozo.

Legal offices
Preceded by Frank Hiscock	Chief Judge of the New York Court of Appeals 1927–1932	Succeeded by Cuthbert Pound
Preceded by Oliver Holmes	Associate Justice of the Supreme Court of the United States 1932–1938	Succeeded by Felix Frankfurter