Erik Visits an American Grave, Part 1,350

This is the grave of Benjamin Cardozo.

Born in 1870 in New York, Cardozo grew up in an elite Jewish family. In fact, his cousin was Emma Lazarus, who wrote the poem that is on the Statue of Liberty, and he was named for his uncle Benjamin Nathan, VP of the New York Stock Exchange. But that doesn’t mean that Cardozo’s childhood was that easy. His mother died when he and his twin sister were 11 and the father Albert, a former judge on the New York Supreme Court, was basically nonexistent at that. They were raised by their much older sister. In fact, Albert was disgraced due to getting busted for corruption (outrageous, no one actually got busted for corruption in the Gilded Age!).

Anyway, Cardozo started at Columbia when he was still 15 and then he went onto Columbia Law. He never actually finished his law degree, but the embarrassment of his family’s failings was strong in him and he wanted a career in law to make up for his father’s corruption. Cardozo passed the bar in 1891. His older brother already had a practice, so he worked for his brother. He became a fast riser in the law field. He was brilliant, he had pretty good politics, he had friends in both political parties. With plenty of support from other legal leaders, he ran for the state Supreme Court, his father’s old job, in 1913, and won going away. He was appointed to the Court of Appeals in 1917 and won a 14 year term on that court later that year, with his name on both parties’ tickets. He became the Chief Judge in 1926, another 14 year elected term.

Through this time, he became known as one of the great legal thinkers in the United States. In 1921, he gave a series of lectures at Yale that he then complied into a book titled The Nature of the Judicial Process, one of the most influential books of legal theory ever written in the United States. In it, he urged justices to follow previously decided law in clear cases and to, yes, make new law when the cases require it, with social welfare as the core value. If Congress or other legislative bodies were not going to step up and legislate the new realities they faced, which older law could not adjudicate, then the courts needed to do it for them. He wasn’t exactly a judicial activist so much as he was a judicial realist who read the reality of the early twentieth century and knew the courts needed to respond to this rather than put their heads in the sand. In this, he was following people such as Oliver Wendell Holmes, who for much of his career was a pro-corporate hack but who in later years really grew and started creating legal space to adjust to the twentieth century. This was so successful that Cardozo developed an entire side gig publishing his thoughts on these issues. The Growth of Law followed in 1924 and then came The Paradoxes of Legal Science in 1927.

In 1932, a Supreme Court seat opened up. Holmes finally retired. There was an overwhelming movement to name Cardozo as his replacement. Now, Herbert Hoover wasn’t sure. First, Cardozo was pretty liberal, not to mention a registered Democrat. Second, Cardozo was a Jew. No, really. See, Hoover was allied with James McReynolds and that justice hated Jews. Plus Louis Brandeis was already on the Court. So what would McReynolds do if there were two Jews on the Court? This was a serious concern for Hoover. But the lobbying was real here. Harlan Fiske Stone literally offered to resign if Hoover needed another nominee to balance out Cardozo. Stone wanted Cardozo on the bench that badly. In fact, when Calvin Coolidge had nominated Stone to be Chief Justice in 1925, Stone urged the president select Cardozo instead. But Coolidge was such a committed right-winger that there was no way that was happening, though Stone was no real conservative either. The entire legal faculty at the University of Chicago Law School signed a letter in support of Cardozo. Hoover received direct lobbying from leading legal minds of both parties. So he finally acquiesced.

As it turns out, this was one of the most important moves in Court history. What would the New Deal have looked like with another right-winger on the Court instead of Cardozo? The Court was on the verge of blowing up any authority it had by throwing everything the Roosevelt administration wanted out anyway, leading to FDR’s court-packing move. Cardozo was one of the three strong liberals on the Court. If Hoover had only named someone with his own ideology, the entire history of the United States might look differently. Thankfully, instead he actually did something useful with his disastrous presidency.

Cardozo was not necessarily a groundbreaker on the Court. Part of this is that he wasn’t on there for very long. He wrote some relatively important opinions, but not on the most major cases of the era. He tended to write a lot of the more minor opinions, which given what I know about Cardozo’s personality–someone who did not consider himself a genius, but rather a plodder who worked really hard–make sense. He actually wrote about 100 opinions in seven years, which is a lot of work. But on the big cases, he was just that reliable liberal voice and respected colleague who everyone had to at least to pretend to listen to (except McReynolds, who probably did hook nose things with his fingers when Cardozo and Brandeis spoke). He let others write the big opinions, for the most part. A lot of his work was on free speech cases. He wrote the opinion in Herndon v. Lowry, which threw out the Georgia conviction of a communist for sedition since he actually hadn’t done anything. Then in Associated Press v. National Labor Relations Board, Cardozo wrote for the liberals who rejected AP’s bullshit move to fire a union organizer based on freedom of speech grounds and defended the NLRB.

Alas, in 1937, Cardozo had a major stroke. He tried to hang on to his seat, but he died the next year. He was 68 years old. FDR named Felix Frankfurter to replace him.

Benjamin Cardozo is buried in Beth Olom Cemetery, Queens, New York.

If you would like this series to visit other Supreme Court justices, you can donate to cover the required expenses here. Willis Van Devanter is in Washington, D.C., and James McReynolds is in Elkton, Kentucky. Previous posts in this series are archived here and here.