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...