Baroque workings of a judicial genius


June 18, 1999

Benjamin Cardozo was not only a "lawyer's lawyer", but more surprisingly a "judge's judge". Although he reached the Supreme Court only late in life - he died in 1938 at the age of 68, after a bare six years of active service on the court - he was for almost two decades before that a judge and latterly chief judge of the New York Court of Appeals, in those days the most important of state courts. It was there that he acquired an astonishing reputation for judicial imagination and intelligence. Andrew Kaufman's large and immensely thorough account of Cardozo's life and times explains Cardozo's appeal to lawyers and to judges of his own and later days in satisfying detail. It makes Cardozo the man seem a rather sad and isolated figure, but it shows what the judicial mind can be like when touched by genius.

This is a rather extraordinary book. As Kaufman says, wryly, it must be the last book to be inspired by the late Felix Frankfurter - who encouraged Kaufman to get on with it in 1957. It is written in an artless fashion, with rather brief, arm's-length narrative chapters on Cardozo's life and career framing long analytical accounts of famous cases, and some exceedingly interesting thoughts about both the impact and the intrinsic merits of Cardozo's judgments, and some equally interesting reflections on Cardozo's views of what judges do. This artlessness ends by being a considerable strength. Cardozo wrote a baroque prose that was good-naturedly mocked by his contemporaries and colleagues, but Kaufman's plain style elegantly sets off Cardozo's intricacies and decorations and allows the reader to see clearly and deeply into the argument.

Cardozo was born in 1870, into a well-to-do Sephardic Jewish family. The family had come to America before the revolution and had flourished. They were not threatened by anti-Semitism in the communities in which they lived, but they were nonetheless very insular; double-cousin marriages were common - and Cardozo's generation gave up on marriage almost entirely. Only one sister married, and she married a Gentile; the marriage was childless. Cardozo's closest relationship was with his older sister Nellie.

Cardozo's father Albert was both an inspiration and a burden. He was a highly successful New York lawyer who prospered by making political ties to Tammany Hall. Successive judgeships led to his election as chief judge of the New York Court of Appeals. Scarcely had he reached this peak than disaster struck. Even by the standards of the day, he was an unabashed partisan in deciding commercial cases. What brought him down was nepotism, however. In 1870, the Bar Association of the City of New York was created to reform the legal profession in the city. The Bar Association urged the legislature to open hearings on Cardozo's conduct; in the spring of 1872, it did, and in May of that year, he resigned to escape impeachment and trial. Although his disgrace was complete, his career as a lawyer was not, and he practised until his death in 1885.

Young Benjamin thus grew up in an affluent but anxious household. His intellect blossomed when he went to Columbia in 1885. Astonishingly, hundreds of pages of lecture notes and notes on what he read survive from his six years as a student in the political science department and the law school. They reveal rather little beyond explaining why his contemporaries elected him both "most intelligent" and "most modest" student of the year. He was shy, quiet, intellectually confident but not well suited to the rough and tumble of late adolescence.

What he was suited to was the practice of law. He had the combination of analytical sharpness and rhetorical flair that the best lawyers possess, and he turned them to good use. The minimum age for practising law was 21, and he was admitted to the bar a week or two after his 21st birthday. He joined the firm his father had founded and, unlike most fledgling lawyers who prepared cases for their elders and betters to argue, went straight into litigation. One judge observed that it was surprising to see a "stripling" whom he had mistaken for the office boy produce the best-argued case he had ever heard. Cardozo was a "lawyer's lawyer" from the outset in the sense that his practice was mostly in the appellate courts; he was also a "lawyer's lawyer" in the sense that he had a keen eye for every technicality that might rescue a client from the snares of the common law.

Cardozo's early work was commercial but towards the end of his time in private practice, he began arguing torts cases of the sort that made him famous as a judge. Kaufman's dry retelling of the cases strikes one today almost as much because of the picture it paints of a rough and dangerous world as because of the interest of the cases. In one he tried to secure damages for a passer-by from the City of New York after illegally stored dynamite had exploded in the street. More interestingly, perhaps, he defended the owners of the Schubert Theaters against the charge of violating New York's civil rights law by refusing to honour the ticket of a coloured patron. Eighty-five years later, it looks as though he worked the Supreme Court's decision in Plessy vs Ferguson that facilities could be "separate but equal" very hard indeed. The sense in which Cardozo was a "liberal" lawyer was that he was an imaginative interpreter of the common law, not that he had a passion for the usual liberal causes.

In 1913, his life changed dramatically. A fusion ticket was created to fight Tammany Hall and elect a reform mayor for New York. Cardozo was part of the slate, standing for a Supreme Court judgeship. (Then, as now, the Supreme Court of New York was a court of first instance; the Court of Appeals was and is the highest court.) Cardozo was elected, but within weeks was designated to sit on the Court of Appeals; four years later he was elected as a regular judge on that court. Until he was elevated to the Supreme Court in 1932, his working life was set.

He was a bold judge, but in ways that might make us blink. Like the post-1937 Supreme Court, he held that where the legislature had come to a settled view, courts ought in general to defer to it. At a time when the Supreme Court was famously hostile to legislation that curtailed the rights of property owners in favour of the rights of workers, this was a liberal view. On the other hand, he took a pretty tough view about the law as it stood. He found, for instance, against the family of a window cleaner who had fallen from a school building that had no fixtures for safety belts. Schools were not covered by the legislation that required such fixtures, and Cardozo held that a window cleaner took a job on a school building on those terms. He minded very much that damage should have been foreseeable if a claim for negligence was to stick, and he did not venture down the track of looking for the deepest pockets.

But he became famous by giving the Storrs Lectures in 1921 at Yale Law School. The Nature of the Judicial Process was a smash hit on delivery and has remained so since. Cardozo held the view that Ronald Dworkin has been fighting against for 30 years - that in hard cases judges have to legislate, and they must do so by a mixture of means, involving analogical extension of the existing law and an appeal to the basic purposes of the law. This last was what Cardozo called "the sociological method", and it required the judge to think quite hard about what the law meant in current conditions.

But Cardozo was emphatic that judges could not play fast and loose with the law; they legislated only interstitially. Moreover, they could not legislate according to their own moral preconceptions; they had to follow the best lights of their society. This was not, however, a recipe for giving in to the prejudices of that society - or at any rate, not the prejudices of the mob. This is the side of Cardozo that high-powered judges of our time, and in particular Judge Richard Posner, admire so much. Posner has recently described it as "pragmatist judging", and has praised it for its humane potentialities. Because Cardozo died relatively young, as judges go, and his time on the Supreme Court was spent largely in the company of the dinosaurs whose chief aim seemed to be to hold up the New Deal as long as possible, he never had the chance to apply his views in the constitutional context where they would have done most good. But Kaufman shows clearly why that was such a shame.

Alan Ryan is warden, New College, Oxford.


Author - Andrew L. Kaufman
ISBN - 0 674 09645 2
Publisher - Harvard University Press
Price - £34.50
Pages - 731

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