Adventures of a Biographer

MKaufmanay 1 marked the official publication date of Cardozo, which I completed after more than 40 years of research into the life of a great man whose work affected law everywhere in the common law universe.

Benjamin Cardozo lived from just after the Civil War until just before World War II. By common consent he was the outstanding state court judge of that period and his reputation was second only to that of Holmes. Cardozo came from an old Sephardic Jewish family, both branches of which, the Cardozos and the Nathans, were in this country before the Revolution. The Sephardic Jews had fled the Spanish Inquisition and made their way to the American colonies via Holland and England. By the time Benjamin was born, his family had made its way in American society. The uncle for whom he was named, Benjamin Nathan, was a vice president of the New York Stock Exchange and a well-known philanthropist. His father was a justice of the New York Supreme Court and the Cardozos lived in an elaborate town house just off Fifth Avenue in mid-Manhattan. Cardozo was a twin, and just after he and his sister were born, disaster struck the family. His uncle Benjamin Nathan was the victim in a famous unsolved murder. His father was a different kind of victim. He was the subject of an impeachment hearing. Albert Cardozo was one of Boss Tweed’s judges, and he resigned just as the New York legislature was about to impeach him. Thereafter, Benjamin Cardozo’s mother became quite ill, and eventually his older sister, Ellen or Nellie, took charge of the upbringing of the twins. Ben was tutored for Columbia by Horatio Alger and he was an outstanding student during his whole college career. He did two years at Columbia Law School before entering his father’s old law firm. He then practiced law for 23 years before being elected to the New York Supreme Court, then as now the trial court, as part of a reform fusion ticket in 1913.

He was selected because the fusion organizers were looking for a Jew to balance the ticket, and he just squeaked into office. Designation to the Court of Appeals by the governor followed one month after his election as a Supreme Court justice. A few years later he was elected to the Court of Appeals and he later became chief judge. After 18 years as a New York judge, he went to the United States Supreme Court in 1932 when Herbert Hoover selected him to replace Holmes. He served for six years during the critical time when the Supreme Court was at the center of controversy because it overturned so much New Deal legislation, but Cardozo lived just long enough to see the complete reversal of the course of decisions by the Court.

One theme of Cardozo is the combined influence of his Sephardic Jewish heritage, of his family, especially his father and his sister Nellie, and of his friends. It is hard to know the full nature of the effect of his father’s disgrace upon his life, but there was some, and Benjamin Cardozo’s achievements would help redeem the family name. He never married, but his relationship with his older sister Nellie provided him with support and warmth as she helped raise him in his early years, as they presided together over their family and their home, and finally as he took care of her during her last, long illness. These experiences contributed to the strong personal values of duty, honor, and individual responsibility that were often evident in his judicial opinions.

Cardozo addressed his Sephardic Jewish heritage early in his professional career in a manner that has some relevance for his future judicial views. He was a member of the Spanish and Portuguese Synagogue in New York, founded in 1654 and the oldest Jewish congregation in the country. He played an important role at a crucial moment in the congregation’s history—when it considered a proposal to end the practice, still observed today, of separate seating for men and women during services. There were few speakers at the critical meeting, but one was the 25-year-old Benjamin Cardozo, who had hardly been noteworthy for his faithful attendance at religious services. But the records tell us that he showed up to urge his views on the congregation. The noted progressive favored bringing the practices of the congregation into the modern era, right? Wrong. He was on the winning side in advocating that the traditions of the congregation’s ancestors be retained. He even implied that a contrary conclusion might be challenged in court. In family life and in his loyalty to his Sephardic heritage, Cardozo reflected a moral and social conservatism that balanced his progressive, modernizing instincts.

Another theme in the biography is the myth of Cardozo’s personality. He was well bred, well educated, and elaborately courteous, and his personal kindliness and gentleness in his later years led many to describe him as a saint. Cardozo was no saint. He was a self-confident, ambitious, tough-minded man who looked out for himself and those he loved in a conscientious pursuit of success. He had the human failings of vanity and some prejudices, but he was a good man with extraordinary talents.

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