People v. Tomlins, 213 N.Y. 240, 243 (1914).
(29.) See pp. 12, 22. The family had to move to a less elegant residence when Ben was three, and they moved again when he was four and seven; the last move "appears to have marked a return to former comfort." P. 19.
(30.) Letter from Cardozo to Learned Hand (Apr. 10, 1921), on the death of Hand's mother, quoted in POLENBERG, supra note 8, at 7.
(31.) In 1916, in the only letter that he wrote to Nellie that survives, he said that he would not want to keep living if anything happened to her. See p. 147. For her part, she had earlier said that she would die if he married. See p. 85.
(32.) From 1891, when Ben began his professional career, until 1929, when Nellie died, she was always home when he came home. Except for the last years, when she was ill, she was there to share intelligent conversation, books, chess, the piano, gossip, humor, worries, and the intimacies of family life.
Pp. 86-87. See also supra notes 20-21.
Cardozo, of course, had no children. In this respect, as Judge Noonan has pointed out, he was no different from Justices Holmes and Frankfurter -- two extremely worldly jurists. See NOONAN, supra note 8, at 143. (Judge Noonan also says that Brandeis was childless. In fact, Brandeis had a daughter, Elizabeth Brandeis Raushenbush, a well-known economist.)
(33.) See pp. 138-39 (describing camaraderie on the Court of Appeals and Cardozo's other friendships during his Albany years).
(34.) Letter from Cardozo to Iago Galdston, 2-3 (Aug. 25, 1934), quoted in Goldberg, supra note 21, at 1433.
(35.) Id.
(36.) Letter from Cardozo to Arthur Corbin (Jan. 17, 1918), quoted at p. 328 (discussing DeCicco v. Schweizer, 117 N.E. 807 (N.Y. 1917) (citations omitted).
(37.) Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing. While we are permitted to scorn nothing but indifference, and do not pretend to undervalue the worldly rewards of ambition, we have seen with our own eyes, beyond and above the gold fields, the snowy heights of honor, and it is for us to bear the report to those who come after us.
Oliver Wendell Holmes, Jr., Memorial Day, Address at Keene, N.H., before John Sedgwick Post. No. 4, Grand Army of the Republic (May 30, 1884), in THE ESSENTIAL HOLMES: SELECTIONS FROM THE LETTERS, SPEECHES, JUDICIAL OPINIONS, AND OTHER WRITINGS OF OLIVER WENDELL HOLMES, JR. 80, 86 (Richard A. Posner ed., 1992).
(38.) "The implication [of the promise in question] is that the father appreciated the fact that husband and wife would need some aid in the battle of life, and that he promised this aid to them to induce them to proceed." Letter from Cardozo to Arthur Corbin, supra note 36.
(39.) Cardozo's support for continued separate seating at his synagogue, see supra note 23, might be deemed a counter example, but his (uncharacteristic) involvement appears to have been too brief and unsustained to characterize him as part of a movement.
(40.) P. 478 (reporting that Cardozo joked that Brandeis ought to pay for a statue of Hitler because Hitler had done so much for Zionism).
(41.) P. 100. Kaufman, relying on his interview with Burlingham, reports that the approach was made in 1908 or 1909 at the behest of Attorney General George Wickersham. Stephen Hessler has raised reasons to doubt the date. Wickersham did not become Attorney General until the inauguration of William H. Taft as President in 1909. Between 1907 and 1911, inclusive, there was only one open seat on the court in question, the District Court for the Southern District of New York, and it was filled by the appointment of Learned Hand in 1909. Gerald Gunther has investigated carefully the considerable evidence documenting the choice of Hand, and reports no evidence suggesting that Cardozo was a candidate at that time. See GUNTHER, supra note 6, at 127-28; Letter from Gerald Gunther to Stephen Hessler (Jan. 26, 2000) (on file,, with the Michigan Law Review). Hand himself recalled to Kaufman that he approached Cardozo about the possibility of Cardozo's taking an appointment to the federal bench; Hand was uncertain about the date, except that he said it was before 1913 (by which he probably meant it was before Cardozo's election to the state supreme court). It seems probable that Hand would make this approach only when he was already on the court -- and that would mean that it concerned a subsequent vacancy. The first vacancy after the one filled by Hand, and the only other one that occurred before Cardozo was elected to the state court, occurred in 1912 and was filled with the appointment of Julius M. Mayer, who like Cardozo was Jewish. It appears to me that, although the near-centenarian Burlingham was remarkably clear-headed when Kaufman interviewed him four and a half decades later, the probable explanation is that he got his dates wrong, and that the approach he had in mind was made with respect to that later vacancy; it appears that the federal selectors, like the state selectors who settled on Cardozo the following year, were looking for, or at least favorably disposed to the choice of, a Jewish judge. Cf. Letter from Gunther to Hessler, supra (saying that "the explanation I would least accept is that Burlingham remembered his dates incorrectly. I interviewed Burlingham when he was about to turn 100, and I have never seen anyone, certainly anyone of advanced age, who was clearer on dates than he." -- but also suggesting that "the explanation that the offer was made in 1911 and 1912 is the most persuasive one").
If I am wrong about that, then we apparently have the intriguing fact that Cardozo was offered and rejected the place on the federal bench that went to Learned Hand. This leads to some amusing counterfactual speculation: What happens if Cardozo accepts? A distinct possibility is that Hand languishes in practice, never going on the bench; Cardozo serves out his career with distinction but little fame on the lower federal courts; Judge Andrews' majority opinion in Palsgraf is virtually unknown, cited only in occasional string cites; Herbert Hoover appoints a moderately conservative Republican to the Supreme Court in 1932; the Five Horsemen barely prevail in Nebbia, Blaisdell, the Gold Clause Cases, Jones & Laughlin, West Coast Hotel and the Social Security Cases; weary of all these rightward-looking decisions, Congress goes along with FDR's Court-packing plan to the extent of adding two justices to the Court. And if I am right -- the seat offered Cardozo was the one that eventually went to Mayer -- the speculation as to what happens given an acceptance by Cardozo is different only in that Hand remains a district court judge rather than in practice. (Mayer was appointed to the Second Circuit in 1921 and, when he left that court in 1924, citing inadequate salary, Hand was appointed to fill the vacancy. It seems likely that had Cardozo been on the district court he, like Mayer, would have been promoted ahead of Hand -- but that unlike Mayer he would have served until his death.) Of course, one butterfly more or less and it could all be very different. Cf. RAY BRADBURY, A Sound of Thunder, in THE GOLDEN APPLES OF THE SUN, 135, 149 (Greenwood Press 1971) (1953).
(42.) See Kaufman, Art of Biography, supra note 3, at 1249-50.
(43.) See pp. 3 ("[H]is life included the toughness of his many years as an ambitious lawyer."); p. 4 (Cardozo was "a self-confident, ambitious, and tough-minded man who looked out for himself and those he loved in a conscientious pursuit of success"); p. 75 ("Cardozo's willingness to go all out demonstrates his zeal as an advocate. He was tough."); cf. p. 408 ("[H]e was neither a `hanging judge' nor a `bleeding heart,' but he was tough on the guilty.").
(44.) See, e.g., pp. 71-77.
(45.) "Aristocratic ideals fit comfortably in a man who took pride in his heritage and in his own talents." P. 214.
(46.) See Zimmern v. United States, 298 U.S. 167 (1936).
(47.) Before Marshall became Chief Justice, the justices gave opinions seriatim. He put a prompt end to the practice. See PERCIVAL E. JACKSON, DISSENT IN THE SUPREME COURT 21 (1969).
(48.) See Coombes v. Getz, 285 U.S. 434, 448 (1932) (Cardozo, J., dissenting); see also pp. 494-95 (discussing Coombes). During Marshall's tenure, two justices wrote their first opinions concurring in cases in which Marshall -- who hogged most of the important cases -- wrote the lead opinion. See Rose v. Himely, 8 U.S. (4 Cranch) 241, 281 (1808) (Livingston, J., concurring); Huidekoper's Lessee v. Douglass, 7 U.S. (3 Cranch) 1, 72 (1805) (Johnson, J., concurring). Apart from these two justices, Cardozo was the first since the accession of Marshall whose first opinion as a justice was other than a majority opinion. (There have been several more since Cardozo, in part because this has been an era of fragmentation on the Supreme Court.) See Memorandum from Nancy Vettorello, Research Attorney, University of Michigan Law Library, to the author (Apr. 13, 2000) (on file with author). My thanks to Ms. Vettorello for tenacious research in checking out this point.
(49.) 293 U.S. 388 (1935).
(50.) 295 U.S. 495 (1935).
(51.) In Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934), Cardozo wrote a draft concurrence that he eventually withdrew after Hughes, writing the majority opinion, added a passage incorporating much of its substance. See pp. 500-02. As Kaufman says, this draft "was a forceful and candid justification for reinterpreting constitutional provisions in light of their purposes and in light of changing conditions of society." P. 502. Cardozo's emphasis on the importance of growing social interaction (speaking of the state "furthering its own good by maintaining the economic structure on which the good of all depends," p. 500-501 (citations omitted)), had been foreshadowed as long ago as 1921. See BENJAMIN N. CARDOZO, Introduction. The Method of Philosophy, in THE NATURE OF THE JUDICIAL PROCESS 9, at 24 (1931) (speaking of "the growing complexity of social relations" as having revealed the inadequacy of the earlier rule "that A. may conduct his business as he pleases, even though the purpose is to cause loss to B., unless the act involves the creation of a nuisance").
In Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330 (1935), in which the Court held unconstitutional a federal statute requiring railroads subject to the Interstate Commerce Act to establish retirement and pension plans, Cardozo helped Hughes craft his fine dissent. Cardozo suggested the analogy between a pension law and workmen's compensation laws. "What is the distinction between compensating men who have been incapacitated by accident (though without fault of the employer), and compensating men who have been injured by the wear and tear of time, the slow attrition of the years?" Pp. 519-20 (citations omitted). Hughes adopted the argument and much of the language. See 295 U.S. at 384.
In Grosjean v. American Press Co., 297 U.S. 233 (1936), Cardozo turned the Court around. Louisiana, under Huey Long, had passed a statute taxing the advertising receipts of newspapers and other periodicals. Justice Sutherland originally wrote an opinion of the Court holding the tax invalid as a denial of equal protection because it made the size of the tax depend on the publication's circulation. Cardozo drafted a concurrence that rejected this basis and concluded that the tax was a violation of freedom of the press because it discriminated against newspapers in favor of other forms of business. Sutherland rewrote his opinion, adopting a rationale much like Cardozo's. See pp. 539-41.
(52.) I made this suggestion in a previous article. See Richard D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation, 142 U. PA. L. REV. 1891, 1944 (1994) [hereinafter Switching Time]. Professor Barry Cushman has challenged the characterization, properly pointing out that some of Roberts' decisions for the Court were anything but timid. See BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION 262-63 n.58 (1998). I have nevertheless adhered to the view that some form of timidity must account in part for Roberts' mysterious conduct in Morehead v. New York et rel. Tipaldo, 298 U.S. 587 (1936), in which Roberts "failed to write separately, despite the fact that the majority opinion clearly adopted a position that he must have found appalling (and in Cushman's account, he failed even to state his mind clearly in conference)." Richard D. Friedman, Taking Decisions Seriously: A Review of Rethinking the New Deal Court: The Structure of a Constitutional Revolution, 24 J. SUP. CT. HIST. 314, 320-21 (1999). The stark contrast in this respect with Cardozo -- who clearly was willing to press his views upon his more senior colleagues -- seems to fortify this conclusion. To put the point in somewhat oversimplified terms, Roberts sought the cover of his colleagues, and Cardozo did not.
In one interesting respect, however, Roberts and Cardozo acted similarly. On the basis of the available transcripts, it appears that Roberts asked hardly any questions at oral argument, and Cardozo was the next most silent member of the Court. (Justice Van Devanter, the most senior associate justice, asked the next fewest, and all the other members of the Court were far more active questioners.) See Switching Time, supra, at 1944 n.267.
(53.) See CARDOZO, supra note 51, at 21.
(54.) See id. at 22.
(55.) See BENJAMIN N. CARDOZO, Adherence to Precedent. The Subconscious Element in the Judicial Process, in THE NATURE OF THE JUDICIAL PROCESS, supra note 51, at 142, 178-79. See also id. at 179 ("In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.").
(56.) See CARDOZO, supra note 51, at 28.
(57.) Id. at 22-23.
(58.) Id. at 25.
(59.) See CARDOZO, supra note 55, at 178.
(60.) See CARDOZO, supra note 51, at 25.
(61.) P. 199. See, e.g., BENJAMIN N. CARDOZO, Functions and Ends (Continued). Conclusion, in THE GROWTH OF THE LAW 109, 143 (1924) ("The victory is not for the partisans of an inflexible logic nor yet for the levelers of all rule and all precedent, but the victory is for those who shall know how to fuse these two tendencies together in adaptation to an end as yet imperfectly discerned.").
(62.) Of course, he was not alone in this dual recognition. Consider this famous passage by Justice Holmes:
I recognize without hesitation that judges must and do legislate, but they
do so only interstitially; they are confined from molar to molecular
motions. A common-law judge could not say I think the doctrine of
consideration a bit of historical nonsense and shall not enforce it in my
court.
Southern Pacific Co. v. Jensen, 244 U.S. 205, 221 (1917) (Holmes, J., dissenting), quoted in BENJAMIN N. CARDOZO, The Methods of History, Tradition and Sociology, in THE NATURE OF THE JUDICIAL PROCESS, supra note 51, at 51, 69.
(63.) CARDOZO, supra note 51, at 20
(64.) CARDOZO, supra note 55, at 164.
(65.) Id.
(66.) Id. at 165.
(67.) Id. at 149.
(68.) CARDOZO, supra note 51, at 34.
(69.) Id.
(70). Id. at 30.
(71.) Id. at 32.
(72.) "There were brave men before Agamemnon; and before the dawn of the last decade there were those in jurisprudence who strove to see the truth in the workings of the judicial process, to see it steadily and whole, and to report what they had seen with sincerity and candor." Benjamin N. Cardozo, Jurisprudence, Address Before the New York State Bar Association Meeting, Hotel Astor (Jan. 22, 1932), in SELECTED WRITINGS OF BENJAMIN NATHAN CARDOZO, supra note 12, at 7, 10-11.
(73.) Id. at 14-16; see also id. at 30 ("[T]here must always be remembrance of the truth that of the ends to be achieved definiteness and order are themselves among the greatest and most obvious.").
(74.) Id. at 19. Cardozo cautioned that he was referring not to dicta -- though he recognized that even they "have been propagating forces and have borne a fruitful progeny" -- but to "the professed and declared principle dictating the conclusion." See id. at 19-20.
This essay generated a heated private response from Jerome Frank. See pp. 458-60. Professor Goldberg takes Kaufman to task for concluding that "Jerome Frank was simply too ethereal for Benjamin Cardozo." P. 461. According to Goldberg, "Cardozo did not reject Frank's Realism because he found it `too ethereal.' He rejected it because he thought it was wrong! And he thought it was wrong because of its reductionist claim that legal concepts and principles must be reduced to statements about observable causes and consequences." Goldberg, supra note 21, at 1453. Goldberg is surely right that Cardozo thought Frank was wrong, and for the reason he says -- and I do not think that Kaufman meant to suggest otherwise. But it also seems clear that at least one reason why Cardozo thought Frank was wrong was that this "reductionist claim" ignored the reality that Cardozo confronted every day, that doctrine has generative and constraining force. (I find quite mystifying Goldberg's assertion that "Posner and Kaufman ... do[] their best to ignore Jurisprudence."
See Goldberg, supra note 21, at 1453. In fact, Posner describes it as "neglected" and as a fitting capstone to Cardozo's writing on jurisprudence. See POSNER, supra note 1, at 21, 31. Kaufman gives a full and fair description of the lecture, its background, and its aftermath.)
(75.) See CARDOZO, supra note 51, at 49.
(76.) See id. at 40.
(77.) See id. at 30-31; CARDOZO, supra note 62, at 51-58.
(78.) See CARDOZO, supra note 51, at 31; CARDOZO, supra note 62, at 58-64.
(79.) CARDOZO, supra note 62, at 66. This passage is presented prominently on the wall of the lobby of the Benjamin N. Cardozo School of Law in New York City.
(80.) CARDOZO, supra note 62, at 72; see id. at 65-66.
(81.) In a letter to Learned Hand, Cardozo expressed the hope that in his judicial work he was "interpreting the common will," the fear that this was "a sham," and the sense that he was "expressing thoughts and convictions not found in the books and yet not totally [his] own." P. 215.
(82.) BENJAMIN N. CARDOZO, The Method Sociology. The Judge as a Legislator, in THE NATURE OF THE JUDICIAL PROCESS, supra note 51, at 98, 106. Kaufman discusses criticisms of this passage -- that it is vague, that it is elitist, and that it is a euphemism for the judge's own values. See pp. 214-16.
(83.) Moreover, as Kaufman points out, "Cardozo espoused the dominance of community standards, both as actually practiced and in their normative or ideal sense, without advertising the problem that these two standards, actual and normative values, might often conflict with one another." P. 211.
(84.) BENJAMIN N. CARDOZO, The Growth of Law, and the Methods of Judging, in THE GROWTH OF THE LAW, supra note 61, at 56, 64.
(85.) CARDOZO, supra note 55, at 166.
(86.) Grant Gilmore said that The Nature of the Judicial Process "has almost no intellectual content." GILMORE, supra note 16, at 76.
(87.) Kaufman reports an almost rapturous reception to Cardozo's Storrs Lectures, which became The Nature of the Judicial Process, and to the publication of the book itself. See pp. 217-18.
s, a classic head fuck.
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