Benjamin N. Cardozo
|Associate Justice of the Supreme Court of the United States|
March 2, 1932 - July 9, 1938
|Oliver Wendell Holmes Jr.|
|Chief Judge of the New York Court of Appeals|
January 1, 1927 - March 7, 1932
|Associate Judge of the New York Court of Appeals|
January 15, 1917 - December 31, 1926
|John F. O'Brien|
|Justice of the Supreme Court of New York for the First Judicial Division|
January 5, 1914 - January 15, 1917 (Sitting by designation in the Court of Appeals from February 2, 1914)
|Bartow S. Weeks|
|Samuel H. Ordway|
Benjamin Nathan Cardozo
May 24, 1870
|Died||July 9, 1938 (aged 68)|
Port Chester, New York, U.S.
|Education||Columbia University (BA, MA)|
Benjamin Nathan Cardozo (May 24, 1870 - July 9, 1938) was an American lawyer and jurist who served as an Associate Justice of the Supreme Court of the United States. Previously, he had served as the Chief Judge of the New York Court of Appeals. 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.
In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court to succeed Oliver Wendell Holmes Jr. Cardozo served on the Court until his death in 1938, and formed part of the liberal bloc of justices known as the Three Musketeers. He wrote the Court's majority opinion in notable cases such as Nixon v. Condon and Steward Machine Co. v. Davis.
Cardozo, the son of Rebecca Washington (née Nathan) and Albert Jacob Cardozo, was born in 1870 in New York City. Both Cardozo's maternal grandparents, Sara Seixas and Isaac Mendes Seixas Nathan, and his paternal grandparents, Ellen Hart and Michael H. Cardozo, were Western Sephardim of the Portuguese Jewish community, and affiliated with Manhattan's Congregation Shearith Israel. Their ancestors had immigrated to the British colonies from London, England before the American Revolution.
The family were descended from Jewish-origin New Christian conversos. They left the Iberian Peninsula for Holland during the Inquisition. There they returned to the practice of Judaism. Cardozo family tradition held that their marrano (New Christians who maintained crypto-Jewish practices in secrecy) ancestors were from Portugal, although Cardozo's ancestry has not been firmly traced to that country. But "Cardozo" (archaic spelling of Cardoso), "Seixas" and "Mendes" are the Portuguese, rather than Spanish, spelling of those common Iberian surnames.
Benjamin Cardozo had a fraternal twin, his sister Emily. They had a total of four siblings, including an older sister Nell and older brother.
Benjamin was named for his uncle, Benjamin Nathan, a vice president of the New York Stock Exchange. He was murdered in 1870 and the case was never solved. Among their many cousins, given their deep history in the US, was the poet Emma Lazarus. An earlier family was Francis Lewis Cardozo (1836-1903) and his two brothers, free men of color of Charleston, South Carolina. Francis became a Presbyterian minister in New Haven, Connecticut after education in Scotland, and was elected as Secretary of State of South Carolina during the Reconstruction era. Later he worked as an educator in Washington, DC under a Republican administration.
Albert Cardozo, Benjamin Cardozo's father, was a judge on the Supreme Court of New York (the state's general trial court) until 1868. He was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, and forced to resign. The scandal also led to the creation of the Association of the Bar of the City of New York. After leaving the court, the senior Cardozo practiced law for nearly two decades more until his death in 1885.
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. One of Benjamin's tutors was Horatio Alger.
At age 15, Cardozo entered Columbia University where he was elected to Phi Beta Kappa. 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, sullied by his father's actions as a judge. Cardozo left law school after two years without a law degree.
Cardozo passed the bar in 1891 and began practicing appellate law alongside his older brother. Benjamin Cardozo practiced law in New York City until year-end 1913 with Simpson, Warren and Cardozo.
Interested in advancement and restoring the family name, Cardozo ran for a judgeship on the New York Supreme Court. In November 1913, Cardozo was narrowly elected to a 14-year term on that court, taking office on January 1, 1914.
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 Samuel Seabury. In November 1917, he was elected on the Democratic and Republican tickets to a 14-year term on the Court of Appeals.
In 1926, he was elected, on both tickets again, to a 14-year term as Chief Judge. He took office on January 1, 1927, and resigned on March 7, 1932 to accept an appointment to the United States Supreme Court.
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. In 1921, Cardozo gave the Storrs Lectures at Yale University, which were later published as The Nature of the Judicial Process (On line version), a book that remains valuable to judges today.
Shortly thereafter, Cardozo became a member of the group that founded the American Law Institute, which crafted a Restatement of the Law of Torts, Contracts, and a host of other private law subjects. He wrote three other books that also became standards in the legal world.
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.
In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes. The New York Times said of Cardozo's appointment that "seldom, if ever, in the history of the Court has an appointment been so universally commended." Democratic Cardozo's appointment by a Republican president has been referred to as one of the few Supreme Court appointments in history that was not motivated by partisanship or politics, but strictly based on the nominee's contribution to law. At the time Hoover was running for re-election, eventually against Democrat Franklin Roosevelt, so he may still have been considering a larger political calculation.
Cardozo was confirmed by a unanimous voice vote in the Senate on February 24. On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence C. Dill, Democratic Senator for Washington, called Hoover's appointment of Cardozo "the finest act of his career as President". The entire faculty of the University of Chicago Law School had urged Hoover to nominate Cardozo, as did the deans of the law schools at Harvard, Yale, and Columbia. Justice Harlan Fiske Stone strongly urged Hoover to name Cardozo, even offering to resign to make room for him if Hoover had his heart set on someone else (Stone had suggested to Calvin Coolidge that he should nominate Cardozo in 1925 before Stone). Hoover originally demurred; he was concerned that there were already two justices from New York, and a Jew on the court. Justice James McReynolds was known as a notorious anti-Semite. When the chairman of the Senate Foreign Relations Committee, William E. Borah of Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the pressure.
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.
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).
As an adult, Cardozo no longer practiced Judaism (he identified as an agnostic), but he was proud of his Jewish heritage.
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. As far as is known, Benjamin Cardozo led a celibate life. The fact that Cardozo was unmarried and was tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) has led some of Cardozo's biographers to suggest that Cardozo was homosexual. No real evidence corroborates this theory.
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."
Cardozo was born into the Spanish and Portuguese Jewish community, which had traditions distinct from the Ashkenazi. Since the appointment of Justice Sonia Sotomayor in the 21st century, some commentators have suggested that Cardozo should be considered the 'first Hispanic justice.' But he did not grow up in Hispanic culture. In 1492 the Spanish Crown expelled resident Jews who would not convert, and persecuted some who did.
In response to this controversy, Cardozo biographer Kaufman questioned the usage of the term "Hispanic" in Justice Cardozo's lifetime, stating: "Well, I think he regarded himself as a Sephardic Jew whose ancestors came from the Iberian Peninsula." After centuries in British North America, Cardozo "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions". Ancestors had lived in England, the British colonies, and the United States since the 17th century.
Some Latino advocacy groups, such as the National Association of Latino Elected Officials and the Hispanic National Bar Association, consider Sonia Sotomayor to be the first Hispanic justice, as she was raised in Hispanic culture.
Cardozo's opinion of himself shows some of the same flair as his legal opinions:
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.
Schools, organizations, and buildings named after Cardozo