Cardozo.

• Author: Friedman, Richard D.
• Position: Review

CARDOZO. By Andrew L. Kaufman. Cambridge: Harvard University Press. 1998. Pp. xii, 731. Cloth, $55; paper, $19.96.

Benjamin Cardozo was one of the towering figures of American law in the twentieth century. Among state court judges he had no peer.(1) His reputation stems principally from his eighteen years on the New York Court of Appeals; nearly seventy years after he left that court many of his opinions, as well as some of his nonjudicial writings, remain staples of legal education. He capped his career with a glittering tenure of six years on the United States Supreme Court during one of the most critical periods in its history. Though he was the junior justice during almost that entire time, he had a major and beneficent impact on its work.(2)

And yet, until recently, there has not been a full scholarly biography of Cardozo. Felix Frankfurter and Joseph L. Rauh -- Cardozo's last law clerk and Frankfurter's first -- thought as long ago as 1957 that a biography was overdue, and so Frankfurter asked Andrew L. Kaufman, who was then his clerk, if he was interested in writing one. As Kaufman, now the Charles Stebbins Fairchild Professor of Law at Harvard Law School, has related, it took him "about fifteen seconds to answer Frankfurter's question with a `yes' and another forty years to complete the project."(3) The result is Cardozo, a beautifully crafted, thorough, perceptive, balanced, and eminently readable biography.

It is easy to sneer about the time that it took Kaufman to complete this volume.(4) But that is the wrong attitude. I do not want to be understood as advocating decades-long completion times for academic projects of this scope, but there are compensations. It is wonderfully encouraging that a young scholar can engage in such a daunting project and, even after putting it on hold to allow for other work,(5) bring it to fruition in such estimable fashion many years later.(6) To do so requires not only a measure of luck -- continued life and good health -- but extraordinary persistence, stamina, and continued enthusiasm for the project. The ultimate product is much better, and certainly more useful to us today, than it would have been had Kaufman completed it many years ago -- not only because he has had time to put enormous work into it and because it speaks from the vantage point of today, but also because Kaufman lends it great maturity and perspective across the entire range of law. At the same time, the book benefits from the fact that Kaufman began his research so long ago, because he was able to interview many people who knew Cardozo -- including, to take one striking example, the formidable Charles C. Burlingham, a titan of the New York Bar, who was born in 1858 and whom Kaufman interviewed in 1957. (Kaufman has, by the way, stated his "strong impression" that Burlingham was "not only all there but ... remarkably all there" at the time of the interview.(7)) If reading the book sometimes puts one in a time warp -- Kaufman writing near the end of the century on the basis of interviews conducted in mid-century about events in the early years of the century -- at least it brings a distant time one step closer.

In the time that Kaufman worked on this book, others completed projects of less imposing scope on Cardozo.(8) But no future scholar will be able to duplicate Kaufman's work, even if one were so inclined. Thus, even those who are not particularly enamored of the book recognize that this will be the standard Cardozo biography, not only for our time but presumably for all time.(9)

One reason for this judgment is the fact that -- apart from his sheer importance -- Cardozo is not a natural subject for biography. Unlike some other Justices, such as John Marshall, Louis Brandeis, Charles Evans Hughes, and Thurgood Marshall, he did not have a historically significant career before ascending the bench. Unlike Oliver Wendell Holmes, Jr., or Learned Hand, he did not have a vibrant personality that lent itself to anecdote or to correspondence of enduring value. His historical significance lies almost entirely in his judicial opinions and in his other formal legal writings. About half of Kaufman's volume is devoted to analyses of these writings. These discussions are for the most part thematic rather than chronological, especially with respect to the Court of Appeals years, and at times they are relatively unconnected to the strictly biographical narrative of Cardozo's life. But it was probably wise to adopt this rather static structure. There was a static nature to Cardozo's life, for he seems to have been unusually dedicated to routine, "most comfortable doing familiar things in familiar places."(10) And, with some key exceptions, such as the development of the fundamental tort concepts of duty and proximate cause, there was, perhaps surprisingly, relatively little development in Cardozo's jurisprudence over time.(11) At least so far as appears from Kaufman's analysis, many of his opinions could as easily have been written near the beginning or near the end of Cardozo's tenure on the Court of Appeals.

Therefore, while we clearly can hope to understand Cardozo's writings better from having them analyzed comprehensively by an able scholar like Kaufman, it is less apparent that we can understand them better from having them placed in biographical perspective. I believe, however, that, sometimes in subtle ways, we can. In Part I of this Review, I will discuss aspects of Cardozo's life and character. In Part II, I will discuss Cardozo's jurisprudential theory as revealed in his lectures and essays. In Part III, I will suggest how we gain a better perspective on his judicial opinions by understanding not only that theory but also the man and his life.

1. THE MAN AND THE LIFE

   The basic biographical facts of Cardozo's life are well known. Born in 1870, he and a twin sister were the youngest of six children, the descendants on both sides of aristocratic lines of Sephardic Jews. Though raised in an orthodox household and given a rigorous training through his Bar Mitzvah, he abandoned his religious practice and faith early in life.(12) He did, however, retain a strong sense of affiliation with the Sephardic community and pride in its traditions and in his line-age.(13) His father, Albert, an able judge(14) affiliated with the Tammany organization, resigned to avoid impeachment in a corruption scandal when Ben was two years old. Though the affair stained the family name, Albert Cardozo was eventually able to reconstruct his legal practice and to continue to raise his family in considerable comfort. Ben's mother, Rebecca Nathan Cardozo, died in 1879 when he was nine, after a prolonged period of physical and mental disability. Thereafter the principal responsibility for raising him fell to his sister Ellen, known as Nellie, who was eleven years his senior. Ben and Nellie lived together, at first with their father and their other siblings, until she died in 1929. Ben was educated by private tutors, in part by Horatio Alger, who prepared him for the entrance examination to Columbia College.(15) At age 19, Cardozo graduated from Columbia near the top of his class and then attended Columbia Law School for two years. By this time his father had died, but he joined his older brother, Albert, Jr., in the family law office, and they continued as partners until Albert's death in 1909. Cardozo maintained a successful practice in a series of small partnerships until he was elected to the New York Supreme Court -- the trial court of general jurisdiction -- in 1913. About five weeks after taking his seat, he was designated to sit on a temporary basis with the Court of Appeals, the highest court in the state. He was elected a full member of the court in 1917, and Chief Judge in 1927. By this time, in part because of his opinions on behalf of the highest court of the largest and most important state and in part because of his nonjudicial writings, particularly the series of lectures published as The Nature of the Judicial Process, he was the most renowned state court judge in the nation. When Justice Holmes retired in 1932, a strong movement arose among the legal elite for Cardozo to be named as his successor. When President Hoover selected Cardozo, the nomination was approved with virtually no opposition. Cardozo sat on the Supreme Court for about five and one-half years. Together with Justices Brandeis and Stone, he formed the liberal wing of the Court during the crisis years of the mid-1930s. He did not return to the bench after a heart attack in December 1937, and he died the following July.

   Cardozo has often been called a "saint."(16) In part this is because he was, as Kaufman emphasizes, a good man, a kindly and gentle person who was loved by many of those who knew him well (pp. 1, 166-67). But Kaufman is no hagiographer, and he does not hesitate to show Cardozo's flaws. Cardozo was vain and rather smug, he had an aristocratic sense of hauteur, and, more than some other members of the elite classes, he shared the racial and gender-based prejudices of his times.(17)

   The sobriquet of "saint" picks up on something more than Cardozo's goodness. There was an other-worldly air about him. He was a person of elaborate, old-fashioned manners.(18) His celebrated prose style, featuring archaic expressions and unexpected inversions, seemed to come from another time and place.(19) He was almost certainly celibate. Indeed, at least to outward appearances he was asexual.(20) Whether this was a matter of arrested development or repression it may be hard to say(21) (and Kaufman, one restrained and gentle man writing a biography of another, and in as restrained and gentle a manner as academic thoroughness will allow,(22) does not dwell on the point), but it seems he found the whole concept of sex somewhat foreign and unsettling.(23) His domestic life was quiet, unorthodox, and in some ways ascetic; a popular book on the...