CARDOZO, BENJAMIN N. (1870–1938)

The towering professional and public reputation that oliver wendell holmes enjoyed when he retired from the Supreme Court in 1932 contributed to President herbert hoover's selection of Benjamin Nathan Cardozo as his successor despite the fact that there were already two New Yorkers and one Jew on the Supreme Court. Cardozo was one of the very few lawyers in the country whose reputation resembled that of Holmes. A series of famous opinions, his extrajudicial writings, especially The Nature of the Judicial Process, his position as chief judge of an able New York Court of Appeals, and his almost saintlike demeanor propelled him into prominence and combined with the usual exigencies of fate and political calculation to put him onto the Supreme Court.

During his five and one-half terms on the Supreme Court from 1932 to 1938, one of Cardozo's major contributions was his demonstration of the utility of common law techniques to elaboration of the fourteenth amendment. Ever since the passage of that amendment, a substantial body of constitutional thought has sought to prevent, or at least to limit, the substantive interpretation of its open-ended provisions. The line stretches from the slaughterhouse cases (1873) through learned hand to the current day. The arguments in the 1980s are considerably more complex and theoretical than they were in the nineteenth century and in the 1920s and 1930s. Yet the underlying theme remains essentially the same: the inappropriateness in a democratic society of a nonelected court giving substantive content to broad constitutional phrases such as due process of law and equal protection of the laws because of the lack of appropriate sources of judicial law for such an endeavor. The controversies in Cardozo's day revolved around the use of the due process clauses and the equal protection clause to test both the economic legislation that marked an increasingly regulatory society and the numerous infringements by government of individual rights. Although Cardozo's political and social outlook differed somewhat from those of his predecessors on the Court, Holmes, louis d. brandeis, and harlan fiske stone, he shared the general substantive constitutional outlook that they had espoused for many years: great deference to legislative judgments in economic matters but a more careful scrutiny to constitutional claims of governmental violation of civil rights in noneconomic matters.

Thus Cardozo was consistently to be found joining those members of the Court, especially Brandeis and Stone, who voted to uphold economic regulation against attack on commerce clause, due process, and equal protection grounds. He wrote some of the more eloquent dissents, Liggett v. Lee (1933) (Florida chain store tax), panama refining company v. ryan (1935) (the "hot oil" provision of the national industrial recovery act), Stewart Dry Goods Company v. Lewis (1935) (graduated taxes on gross sales), and carter v. carter coal company (1936) (The Guffey-Snyder Act), and two of the major Court opinions after the Court reversed itself and adopted the constitutional views of the former dissenters. In steward machine company v. davis (1937) and helvering v. davis (1937) Cardozo's opinions upholding the social security act expounded Congress's power under the taxing and spending clause of the Constitution and provided the theoretical basis for upholding major legislative policies in a way that complemented the parallel recognition of expansive congressional power under the commerce clause. He also viewed the commerce clause as imposing broad limits on the power of individual states to solve their economic problems at the expense of their neighbors (Baldwin v. Seelig, 1935), although he recognized at the same time that state financial needs required some tempering of those views (Henneford v. Silas Mason Co., 1937).

Cardozo's special contribution lay in his discussion of the methodological approach to substantive results. Long before joining the Supreme Court, he had considered the appropriate factors that shape decision making for a judge, and although his primary experience was in the common law, he had considered the issue with respect to constitutional law as well. Many would sharply curtail the judiciary's role in constitutional, in contrast to common law, adjudication because of the legislature's inability to overturn most constitutional decisions, but Cardozo viewed the process of judicial decision making as unitary. In The Nature of the Judicial Process he had proposed a fourfold division of the forces that shape the growth of legal principles: logic or analogy (the method of philosophy); history (the historical or evolutionary method); custom (the method of tradition); and justice, morals, and social welfare (the method of sociology).

Those who have attacked the common law approach to Fourteenth Amendment adjudication have perceived the specter of subjectivism in employment of all these methods, but especially in the last. Cardozo saw "justice, morals, and social welfare," which he also labeled as "accepted standards of right conduct," as especially relevant in constitutional adjudication. He struggled to find an acceptable formula for deriving those standards, finally settling on "the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous."

Cardozo never directly met the charge of subjectivism, especially subjectivism in Fourteenth Amendment adjudication, for his message about judging was aimed at a different target: the regressive results produced by too slavish adherence to the so-called objective factors of precedent and logic. But he clearly did not believe that all was "subjective" or that complete reliance on "objective" factors was possible either. One did the best one could to avoid judging on the basis of purely personal values. "History or custom or social utility or some compelling sentiment of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law must come to the rescue of the anxious judge, and tell him where to go."

Cardozo brought these ideas with him to the Supreme Court and applied them to a number of notable issues. From its earliest days and notwithstanding bad experience with substantive due process of law, epitomized by dred scott v. sandford (1857) and lochner v. new york (1905), the Court had become committed, in different guises and formulations, to the notion that various rights, liberties, privileges, or immunities existed that were not spelled out in the Constitution. Although there had been occasional discussion since the end of the nineteenth century of the question whether the Fourteenth Amendment "incorporated" specific provisions of the bill of rights (see incorporation doctrine), most major decisions in the twentieth century had used the due process clause on its own to assess whether a particular "liberty" had been denied. As the attack on the Court's use of the due process clause to strike down economic regulation increased throughout the 1930s, the Court began to refocus the issue of protection of noneconomic rights more in terms of incorporation of particular provisions of the Bill of Rights into the Fourteenth Amendment.

The classic reformulation was rendered by Cardozo in palko v. connecticut (1937). To be incorporated the claimed right must be "fundamental"; or one without which "neither liberty nor justice would exist"; or it must "be implicit in the concept of ordered liberty." Without pursuing all the ramifications of the debate over "selective incorporation," as the Palkodoctrine came to be known, we should note that in the midst of the most severe attack on the Court's interpretation of the Fourteenth Amendment, Cardozo and the whole Court never questioned the notion that the amendment had a substantive content. The approach they chose, the selective incorporation doctrine, required the weighing of factors and building up of precedents in a common law fashion with only the general language of the Fourteenth Amendment as a starting point.

Two Fourteenth Amendment cases suffice to demonstrate specific attempts to apply a "common law" method of judging. In Snyder v. Massachusetts (1934) Cardozo wrote an opinion holding that due process was not violated when the defendant was not permitted to be present at a jury view of the scene of an alleged crime. After recognizing that the Fourteenth Amendment protected privileges "fundamental" to a fair trial, he considered history, which showed that a view of the scene by a jury was not considered part of the "trial"; current practice in other states, which generally permitted the defendant to be present; and potential prejudice to defendant, which he found to be remote. The balance of these factors led him to conclude that there was nothing fundamental, on the facts of Snyder's case, about the right being asserted.

In grosjean v. american press company (1936), Cardozo wrote an opinion, never published, concerning a Louisiana statute that placed a tax on newspapers that carried advertising and had a circulation over 20,000. The majority had originally agreed to hold the statute unconstitutional on equal protection grounds. After Cardozo wrote an opinion concurring on grounds of violation of freedom of the press, Justice george sutherland substituted a new opinion for a unanimous Court adopting the free press rationale, although in an ambiguous formulation that suggests unconstitutional motivation as at least one of its rationales. The opinion that Cardozo then withdrew is one of his best, and it discusses his methodology and substantive rationale quite clearly. What is a law "abridging the freedom of the press" may be somewhat more specific than the question whether a law denies liberty without due process of law (or denies a privilege or immunity of national citizenship), but it was not much more of a specific starting point for the Court in the context of the Louisiana statute.

Cardozo's draft opinion considered exhaustively the English use first of licenses and then of taxation to control the press as part of the history that led to adoption of the first amendment. That history led him to conclude that the tax involved was a modern counterpart of those repressive tactics. But he also recognized the financial needs of government. He thus concluded unambiguously—and innovatively—that while the press was not immune from taxation and while classifications were normally a matter of legislative discretion, freedom of the press could be safeguarded only if the press was not subjected to discriminatory taxation vis-à-vis other occupations and through use of internal classifications. The opinion is a splendid example of the use of history and reason combined with a sympathetic appreciation of the setting in which the press functions and of modern needs to assure its "freedom."

Another interesting substantive view was his analysis, before coming to the Supreme Court, of three due process cases that have become increasingly important to modern constitutional theory: meyer v. nebraska (1923) and Bartel v. Iowa (1923) (state laws forbidding teaching of foreign languages to young children held unconstitutional) and pierce v. society of sisters (1928) (state requirement that all children attend public school through eighth grade held unconstitutional). In The Paradoxes of Legal Science he characterized the unconstitutional legislation and the nature of the "liberty" that was upheld in the following prophetic language. "Restraints such as these are encroachments upon the free development of personality in a society that is organized on the basis of family." This emphasis on "free development of personality" and "family" is a stunning extrapolation of a second level of generalization from the constitutional principle of "liberty"; it places Cardozo a half century ahead of his time, for such a conception of the "liberty" protected by the Fourteenth Amendment did not resurface until griswold v. connecticut (1965) and roe v. wade (1973); and it is a graphic (and controversial) example of the operation of the "method of sociology" in constitutional interpretation.

Cardozo was a judge for twenty-four years and he thought hard about what he did. If he was not wholly successful in making a useful statement that would clarify the basis for the creative leap of judgment that enabled him to value certain arguments more than others and thus to reach a conclusion, no one in the half century that followed has been more successful. More important, he provided assistance in his extrajudicial writings and in the reasoning of his opinions for the position, which continues to have considerable support among constitutional theorists and especially among judges, that asserts the validity of applying techniques of common law adjudication to the elaboration of Fourteenth Amendment doctrine. Finally and perhaps even more controversially, he demonstrated that an able, conscientious judge who believed that substantive Fourteenth Amendment adjudication was different from legislating might so comport himself on the bench as to offer hope to his successors a half century later that that position is desirable and capable of achievement.

Andrew L. Kaufman
(1986)

Bibliography

Collected essays on Cardozo in joint 1939 issues of Columbia Law Review, 39, #1; Harvard Law Review, 52, #3; Yale Law Journal, 48, #3; and Cardozo Law Review, 1, #1.

Kaufman, Andrew L. 1969 Benjamin Cardozo. In Leon Friedman and Fred L. Israel, eds., The Justices of the Supreme Court of the United States, 1789–1969, 3:2287–2307. New York: Chelsea House.

——1979 Cardozo's Appointment to the Supreme Court. Cardozo Law Review 1:23–53.