Benjamin N. Cardozo (1870-1938)
Nathan Cardozo was born in New York City on May 24, 1870, the son of Albert
and Rebecca Nathan Cardozo. He was a twin, born with his sister Emily. Cardozo's
ancestors were Sephardic Jews who immigrated to the United States in the
1740s and 1750s from the Iberian peninsula via the Netherlands and
England. Shortly after Cardozo was born, his father Albert was
implicated in a judicial corruption scandal that was sparked by the Erie
Railway takeover wars, in which parties contending for the control of
the Erie Railway used the judicial system in a way that perverted the
law. In early 1868, Albert Cardozo became a Justice of the Supreme Court
of New York County (a trial court), and his conduct as a judge from
1868-71 led to the newly formed Association of the Bar of the City of
New York to present charges of corruption against him. The Judiciary
Committee of the New York Assembly recommended impeachment, and on the
day the recommendation was to be read to the Assembly, Albert Cardozo
resigned. Albert Cardozo then practiced law until his death in 1885. Rebecca
Cardozo died in 1879, and Benjamin was raised during much of his
childhood by his sister Nell, who was 11 years older than Benjamin. At
age 15, Cardozo entered Columbia University. Shortly after
beginning his studies, Cardozo's father died. After graduating in 1889, Cardozo
entered Columbia University Law School. Cardozo not only wanted to enter
a profession that could materially aid himself and his siblings, but
also hoped to restore the family name, sullied by his father's actions as a
Justice. After two years, Cardozo left Columbia to practice law. He did
not obtain his degree in law, which required attendance in a third year
of law school.
From 1891-1914, Benjamin Cardozo practiced law in New York City. He practiced with his brother Albert (Allie) Cardozo, Jr., until Allie's death in 1909. He lived at the family's home with his brother, sisters Nell and Lizzie, and his twin, Emily.
In the November 1913 elections, Cardozo was narrowly elected to the Supreme Court, the same trial court on which his father had served. Cardozo took office on January 5, 1914. Less than a month later, Cardozo was designated to sit on the New York Court of Appeals, the highest court in the state. Cardozo was appointed to a seat on the Court of Appeals in 1917, and was elected to that seat the same year. He was the first Jew to serve in the Court of Appeals. Cardozo remained on the Court of Appeals until 1932, becoming Chief Judge on January 1, 1927. His tenure was marked by a number of original rulings, in tort and contract law in particular. In 1921, Cardozo gave the Storrs lectures at Yale, which was later published as The Nature of the Judicial Process. This book enhanced greatly Cardozo's reputation, and the book remains valuable today for the light it throws on judging. Shortly after the Storrs lectures, 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.
In early 1932, Justice Oliver Wendell Holmes resigned from the Supreme Court due to advancing age (Holmes was 90.) Cardozo, then 61 (Holmes's age when appointed to the Supreme Court), was nominated by President Herbert Hoover to the Court. Less than two weeks later, the Senate unanimously approved Cardozo's nomination. In Fall 1932, in the midst of the Great Depression, former New York Governor Franklin Delano Roosevelt was elected President. FDR would, beginning in March 1933, usher in the New Deal. Various aspects of the New Deal were subject to constitutional challenge almost immediately.
The Court was deeply divided during the time Cardozo was a member. Cardozo, Louis D. Brandeis and Harlan Fiske Stone were considered the members of the "progressive" faction of the Court. The "Four Horsemen" (evoking the notion of the Four Horsemen of the Apocalypse), Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, were considered as the "reactionary" faction of the Court. Owen Roberts and Chief Justice Charles Evans Hughes were swing votes. Although this division of the members of the Court is misleading in some important respects, it is also relatively clear that the New Deal cases brought to the Court deepened and sharpened this divide. In two early cases concerning state regulation of the economy, Home Loan Association v. Blaisdell and Nebbia v. New York, Court by 5-4 votes held constitutional state actions against challenges based on the due process clause of the 14th Amendment. The Court in 1936 held unconstitutional a minimum wage law in Morehead v. New York ex rel. Tipaldo when Justice Roberts joined the Four Horsemen. A year later, after FDR's reelection, and the announcement of his Court-packing plan, the Court, with Justice Roberts silently switching, voted 5-4 upholding the minimum wage law of the state of Washington in West Coast Hotel v. Parrish. With regard to national regulation of the economy, the Court was initially largely united. Cardozo was the only dissenter in Panama Refining Co. v. Ryan, which concerned delegation of legislative authority to the executive branch. And on May 27, 1935, later called "Black Monday," the Supreme Court issued three unanimous opinions holding New Deal acts unconstitutional. The next year, the Court divided in Carter v. Carter Coal Co. Six members of the Court held unconstitutional as a violation of the commerce clause federal regulation of coal mining wages and hours. Cardozo wrote a dissent suggesting that the formal distinct between production/commerce was untenable, because "the law is not indifferent to considerations of degree." The next year, in NLRB v. Jones & Laughlin Steel, Chief Justice Hughes and Justice Roberts joined Cardozo, Brandeis and Stone to reverse Carter and uphold the regulation of employees involved in production. Jones & Laughlin Steel and Parrish, along with the May 1937 decisions upholding the Social Security Act were the "switch in time that saved nine." The Social Security Cases were written by Cardozo.
In late 1937, Cardozo suffered another heart attack, and in early 1938, he suffered a stroke. He died on July 9, 1938.
Of the six children born to Albert and Rebecca Cardozo, only Emily, married, and she and her husband did not have any children. As far as is known, Benjamin Cardozo led the life of a celibate. As an adult, Cardozo no longer practiced his faith, but remained proud of his Sephardic Jewish heritage.
Further reading: Over four decades in the making, Andrew L. Kaufman's Cardozo is an excellent history of Benjamin Cardozo and the times in which he lived. A shorter study that is also quite valuable is Richard Polenberg, The World of Benjamin Cardozo.