Cardozo.

• Author: Goldberg, John C.P.
• Position: Review

CARDOZO. By Andrew L. Kaufman.([dagger]) Cambridge: Harvard University Press. 1998. ix + 731 pp. $55.00.

In this review, Professor John C.P. Goldberg examines Professor Andrew L. Kaufman's biography of Justice Cardozo. While Cardozo presents a rich factual picture of its subject's life and legal career, Goldberg argues that it fails to capture the essence of his jurisprudence or satisfactorily explain why Cardozo is considered a great judge. Contrary to the opinions of scholars such as Kaufman and Judge Richard Posner, who each consider Cardozo a different form of Legal Realist, Goldberg argues that Cardozo was among the most accomplished anti-Realist judges of the twentieth century. Goldberg takes issue with Kaufman's thesis that Cardozo merely balanced various competing factors in deciding cases--which does little to explain why Cardozo reached the decisions he did--and with Judge Posner's attribution of Cardozo's fame to his literary prowess. Instead, Goldberg argues that Cardozo believed that the law contained meaningful concepts and that the job of the judge is to apply these concepts. Cardozo's talent for conceptual analysis, his detachment from the world, his acknowledgment of his own limitations, his judicial humility, and his perceptiveness shaped his particular style of judging--that of a pragmatic conceptualist. Ultimately, Goldberg argues that Cardozo's greatness can be explained by his ability to combine astute legal analysis with an awareness of social conditions and changing social norms.

It is not obvious that Benjamin Cardozo is a fit subject for a full-length biography. Consider, first, his "outer life." As compared to that of Oliver Wendell Holmes, Jr., Louis Brandeis, or even Learned Hand, it does not make for gripping narrative. Professor Kaufman goes a long way toward capturing the man--and the biographical problem--in his felicitous opening sentence: "Benjamin Nathan Cardozo lived for the law, and the law made him famous."(1) Cardozo was a successful lawyer and one of the greatest jurists this country has ever produced. But he was not a soldier, a statesman, an insider, an activist, an adventurer, a socialite, or a hero. Outside of the office, Cardozo's life was distinctly unexciting. He was a homebody whose favorite leisure activity was reading.

Cardozo's "inner life" poses a different problem. Here, there are signs of an interesting story. Cardozo was raised in a closed, proud Sephardic-Jewish family, yet turned his back on religion as a teenager. His father Albert resigned his own judgeship to avoid impeachment for corruption, but his two sons, Albert, Jr. and Benjamin, inherited his practice and worked together as law partners for nearly twenty years. Perhaps most intriguingly, Cardozo lived with his siblings throughout most of his life, remained single and apparently chaste, and shared an unusually intense bond with his reclusive older sister Ellen.

Each of these aspects of Cardozo's personal life has prompted idle speculation and would seem to warrant sustained biographical investigation. Unfortunately, after forty years of research, Professor Kaufman has concluded that speculation is all we have. Cardozo, with help from faithful agents, destroyed most of the papers through which he might have revealed the state of his psyche, including critical correspondence with Ellen.(2) Likewise, although he worked and lived with his older brother for nearly two decades, "we know almost nothing of [their] personal relationship."(3)

Beyond Cardozo's public and private life, there are, of course, his great judicial opinions(4) and his elliptical addresses on law and adjudication.(5) These are masterful works, and continue to bear careful analysis for their insights into doctrine, legal method, and jurisprudence. But it is not clear how they can benefit from biographical treatment. Efforts to draw a meaningful causal link between a judge's personal life and his work are hazardous.(6) In Cardozo's case, the problem is particularly acute, because the biographer must account for the fact that Cardozo regarded law as a body of rules and principles to be learned and applied, and thus acted on the premise that his job was to apply the law, not to do what he thought was right.(7) It therefore seems unlikely that we will get much beyond the trivial proposition that Cardozo's experiences and values contributed to, but did not determine, his approach to judging and his judgment in particular cases.

Given these daunting prospects, Professor Kaufman deserves congratulations for Cardozo, which weaves together an exhaustively researched account of Cardozo's life with a comprehensive survey of his work. The great strength of Cardozo lies in Kaufman's unyielding commitment to the facts. By providing a wealth of detail, the biographical portions of his book permit us to see the enigmatic Cardozo as a living, breathing person, rather than Grant Gilmore's "saint"(8) or the icy ascetic imagined by John Noonan.(9) The Cardozo described by Kaufman was a man consumed by work, yet considerate of friends and family. He was ambitious, confident, capable, and successful, yet modest, moderate, and decent. He was, in short, an honest, hardworking, highly competent professional.

In a like manner, Kaufman's exhaustive compilation of Cardozo's decisions helps the reader gain an accurate appreciation of his achievement as a jurist. By wading through scores of opinions, and by carefully situating them within Cardozo's overall corpus, Kaufman provides ample evidence to support his central analytical claim that Cardozo was an earnest, upright judge with a facile pen and a knack for striking the right balance between relevant policy considerations.

Cardozo's thematic emphases on its subject's professionalism and judiciousness are reinforced by its encyclopedic qualities. Reading this book, one gets the feeling that Kaufman has located and produced almost every available piece of relevant evidence.(10) Moreover, by refusing to engage in speculation, and by debunking the speculations of others, he maintains a tone of objectivity that inspires confidence in his portrayal. Kaufman's nononsense prose style further conveys his commitment to clarity and objectivity. This is not to say that he expresses no opinion about his subject. He intimates that Cardozo deserved and achieved greatness because of his dedicated professionalism and good judgment, and that one would do well to emulate him. But Kaufman is content to make his case quietly.

The strengths of Cardozo also point to its limitations, which are evident in its biographical and analytical components. Indeed, both suffer from the same fundamental weakness, which is Kaufman's unwillingness to find the story that resides within the data he has so helpfully compiled.(11) A richer account of Cardozo's persona can be constructed out of the raw materials that Kaufman has unearthed, but he does not provide it. Likewise, the core features of Cardozo's jurisprudence are evident almost on the face of the case law that Kaufman so diligently reviews, but he does not capture them.

On the biographical side, Kaufman's laudable desire to humanize Cardozo, when coupled with his unwillingness to venture beyond bare factual descriptions of his life, drains much of the color out the man. Kaufman makes a compelling case that Cardozo was not a saint, a crank, a pervert, or a misanthrope. Still, I doubt that he can be satisfactorily described as "a good man with extraordinary talents."(12) Cardozo may have functioned well in the everyday world, but he was not altogether of this world; and it is this residuum of alienation that Kaufman's portrait ignores.(13) Cardozo was more prone to angst and melancholy than Kaufman lets on, and law was for him more than just a job at which he excelled. In a literal sense, law was his refuge against despair. Indeed, as I hope to show below, Cardozo threw himself into the law because he conceived of it as a vocation in Max Weber's tragic, existentialist sense--a calling that offered him hope for meaning in a disenchanted world, but demanded of him that he renounce ordinary human intimacy and happiness.

The problems that beset Kaufman's analysis of Cardozo's jurisprudence are similar in nature. Kaufman devotes fifteen of twenty-eight chapters (roughly half of 650 pages of text) to describing and analyzing Cardozo's decisions and extra-judicial writings. Although his presentation of this material is informative, his thesis--that Cardozo was an industrious, impartial judge--is not sufficiently robust to sustain the reader's interest through these many pages. Worse, although it is accurate as far as it goes, the thesis does not generate significant insight into Cardozo's jurisprudence, and does not explain why his work-product--unlike that of hundreds of other hardworking, intelligent, moderate judges--continues to occupy a central place in American law. Just as Kaufman's biographical portrait suppresses Cardozo's unhappiness and alienation, his legal analysis drains much of the substance out of Cardozo's contribution to law.

Kaufman's failure to illuminate Cardozo's jurisprudence again reflects his determination to provide facts with a minimum of embellishment. I would suggest, however, that it also reflects a conceptual blind spot that he shares with many other modern legal scholars. Kaufman, following the likes of Leon Green and William Prosser, subscribes to what might be called "methodological" (or "soft") Legal Realism.(14) Like all Realists, he accepts that judicial decisionmaking is discretionary lawmaking--that it has little to do with applying or interpreting legal concepts. As a methodological Realist, Kaufman further believes that the phenomenon of judicial lawmaking involves "balancing" various considerations.(15) Given his purely methodological conception of adjudication, Kaufman's failure to shed light on Cardozo's jurisprudence is in some sense...