Benjamin Cardozo: Jewish Justice*

BENJAMIN CARDOZO:  JEWISH JUSTICE*

Elliot Klayman

BIOGRAPHICAL SKETCH[1]

Benjamin Cardozo (1870-1938) was born of Jewish parents in New York City. His father, Albert, was a gifted judge on the New York Supreme Court.[2] He became infamous for his relationship with the Tweed Ring of the Tammany Hall notoriety.  Albert was forced to resign as a New York judge due to alleged scandalous favors he bestowed upon boss Tweed, and his “friends.”  To compound young Benjamin’s woes, he lost his mother at age nine, followed by his father six years later.  He had a twin sister, with whom he was not very close.  He was, however, exceptionally near and devoted to his sister, Nellie.  She never married.  Neither did Benjamin, opting instead to spend quality time with her.

Cardozo was tutored by Horatio Algier, who became famous for his authorship of popular boys’ books.  The consistent theme within those books was a protagonist who triumphed over obstacles of poverty and misfortune through hard work.  This model influenced Benjamin at a time when his character was being molded.[3]

Cardozo studied at Columbia University, and graduated first in his class at age 19. He was one of four students called upon to deliver a graduation speech to his class.[4] Thereafter, he enrolled in Columbia Law School.  After completing two years, he dropped out, making the choice, like the majority of the class, not to return for the third year.[5] He entered a law apprenticeship and several months later was admitted to the New York state bar. For twenty-three years Cardozo  practiced law in New York, with a focus on complex appeal cases. He was known as a lawyer’s lawyer, since other attorneys often called upon him for consultation on difficult appellate and trial cases. In 1914 he was elected to the New York Supreme Court, and the following month he was appointed by the governor to the The New York Court of Appeals, the state’s highest court.  Three years later he was elected to that court and in 1926  became its chief judge.  He led the court with practically one voice, and gained the respect of its members who recognized his intellect and integrity.  The court influenced the direction of the common law throughout the U.S., and its reputation spread internationally to jurists who took notice of that court’s approach to common law issues.  In England, courts followed suit, and adopted the “Cardozo court” principles in a number of cases.

Cardozo is probably the most famous state judge in American history.  He was  masterfully equipped for the common law, with a brilliance, a sense of history, a philosophical bent, and a sense of  present needs. No student can graduate from law school without encountering Cardozo’s opinions and his memorable phraseologies.[6]

In 1932 the esteemed Justice Oliver Wendell Holmes announced his retirement from the U.S. Supreme Court.  Two judges from New York, Chief Justice Hughes and Justice Harlan Stone, were already seated on the Court.  Additionally, Justice Brandeis, a sitting associate justice was Jewish. Finally, Cardozo was a democrat, and the president who would fill the vacancy, Herbert Hoover, was Republican.  It was highly unlikely that a third New Yorker, and a second Jew who was progressive in political outlook, would be appointed by a Republican president. Yet no one was as qualified to step into the shoes of Justice Holmes, as Benjamin Cardozo. Herbert Hoover named him to the High Court.  This nomination was widely applauded and, unlike Louis Brandeis’s appointment a decade earlier, there were virtually no voices of dissent in the Senate confirmation process. Cardozo served for six years on the court before resigning because of illness at the end of the term in 1938, two months before his death.  His contribution to the Supreme Court was great, but it was overshadowed by his state court contribution where he served so admirably, and harmoniously with the other court members. This “harmonious” experience he found lacking in the Highest Court. These were the days of  New Deal legislation and the inner court struggle among the participating judges who competed for their view to prevail. Early in his tenure, New Deal legislation was struck down, only later to be upheld.[7] He generally voted in favor of upholding the legislation, and is well known for his companion opinions sustaining the Social Security Administration Act’s old age pension and unemployment provisions.

Cardozo authored about 700 decisions, with roughly 500 as a state court judge and 200 as a justice of the U.S. Supreme Court.  His opinions evidence a man who was learned in the classics and who was a master of rhetoric and pithy aphorisms.  Cardozo wrote several books, but none perhaps was as popular as The Nature of the Judicial Process.[8] In it he expounded on judicial influences on decision-making. He dispelled the view that the common law was a grouping of static rules embedded in concrete; it was instead an organic process of change equipped to meet societal needs. Perhaps in large part, due to this work, Cardozo is widely acclaimed as the father of the judicial school of pragmatism.[9] The essence of legal pragmatism is that the law is an instrument of social change and that the judge should be concerned with its consequential impact when interpreting it. He certainly endorsed these principles.[10] He also authored The Growth of the Law,[11] The Paradoxes of Legal Science[12] and Law and Literature,[13] all in which he demonstrated his mastery of the classics, English law, and incisive and penetrating thought and brilliance.

RELIGION AND HERITAGE

Benjamin Cardozo had a religious upbringing, starting at eight days old when he was most certainly circumcised according to the laws of Moses.[14] His parents were orthodox Jews. Benjamin studied for his bar mitzvah, and at age 13 was called to the beema (pulpit) at Congregation Shearith Israel, the oldest extant Jewish synagogue in the United States,[15] at that time.  Benjamin’s family members were active in the congregation.  His uncle, Benjamin Nathan (after whom he was named),[16] served as president of the shul (synagogue), and his father Albert was vice-president.  It is unclear whether Benjamin was tutored in the synagogue or at home in preparation for his bar mitzvah.[17] Normally the tutelage would begin at least one year before the bar mitzvah (after years of primary Hebrew school training), and would involve study and practice of congregational prayers and rituals, and readings, necessary to lead the Sabbath morning service. It probably included the proper way to adorn the tallit (prayer shawl),[18] in preparation for Sabbath synagogue worship and special holidays.  It also might have included teachings on how to wrap tefillin on the arm and how to place it on the head, which religious Jews do in conjunction with their early morning prayers.[19]

Shearith Israel, an orthodox synagogue, was founded by Sephardic Jews.  Sephardic Jews emanated from the Iberian Peninsula,[20] in contrast to Ashkenazic Jews who trace their origins to German lands. In 1492 Sephardic Jews were expelled from Spain and some went to Portugal where most were forcibly converted to Catholicism.[21] Others went to North Africa, and to the Ottoman Empire where they found favor. Still others settled in Holland.  Of those who settled in Holland, several hundred families moved to Brazil where they were offered free settlement by the Dutch West India Company.  It was there that the Sephardic Jews established themselves as merchants.  Residing on a seaport city, they took advantage of the relations they had established in the Mediterranean region, and further fostered commercial intercourse.   When the Portuguese conquered Brazil, and the outpost in Recife surrendered in 1654, these Jews were forced to depart.  Many returned to Holland and resumed their commercial enterprise.  However, in that same year, the ship Ste. Catherine, set sale from Recife, Brazil, with 23 Jewish passengers.  It stopped in Cuba and was turned away. Driven by a wind storm, it landed in New Amsterdam on the North American Continental coast.  Peter Stuyvesant was the governor of New Amsterdam at the time.  He was afraid that the Jews would be a public charge, and consequently was hostile to their entry. Local merchants, concerned about the commercial threat of competition, also objected to them staying, and put additional pressure on Stuyvesant to expel them. Some were undoubtedly anti-Semitic, and indeed Stuyvesant supported them with anti-semitic “Christ-killer” epithets of his own.  However, he softened when his employer, the Dutch West Indies Company insisted that the Jews be permitted to remain.  Apparently, the Company, run by profit-minded owners, believed that it would be more injurious commercially to deny their entry.[22] There they settled in what became New York.[23] Part of the Cardozo family was among those early settlers.  Benjamin Cardozo’s great-great-great-paternal-grandfather, Aaron, immigrated in 1752 from England. Isaac Cardozo, Aaron’s great-great grandfather, fought in the Revolutionary War.[24]

It was Saturday morning, June 2, 1883 when Benjamin and undoubtedly his father and sisters with him, embarked by foot to the congregation for Benjamin’s bar mitzvah.  His father would have been separated from sitting with his daughters since a mechitzah (a wall) divided the genders,[25] as was customary in orthodox synagogues.  The tone would have been austere, quite serious.  This was the day that little Benjamin would enter into manhood, and become eligible to be counted as one in a minyan, a group of ten men necessary for an official prayer meeting, or spiritual gatherings.  This was also the day that his father, Albert, would be released from bearing the responsibility for his son’s sins. Being a Sephardic synagogue, there would be a distinct ethnic pronunciation of the Hebrew, and of the chanting, noticeably different from the Ashkenaz.[26] On that day Benjamin, undoubtedly a bit nervous, ascended to the beemah and there canted in Hebrew from the prophetic book of Hosea.[27] Cardozo was like many who celebrated their bar mitzvah after a term of long preparation for the one day.  Not unlike many, some time after his bar mitzvah, he stopped attending religious services regularly.  He departed from the practice of strict orthodoxy.  Nonetheless, he never denied being Jewish, identified with Jewish causes, and knew the history of the Jewish people and their sufferings throughout the ages.  Even though he liberalized in his religious outlook and practices, some of his speeches make the depth of his understanding of the biblical history of the Jewish people clear.

One such speech was one he crafted but never delivered. It was apparently prepared for an address to be delivered at the newly opened School of Jurisprudence at the Hebrew University on Mount Scopus in Jerusalem, which opened in 1928.  He never made the trip, but he preserved the text of his intended speech.  In it he spoke of the ancient Hebrew law, citing the moral principles contained in parts of the Torah:

Do not heed a popular cry to convict, nor decide a cause either to please the powerful or to favor the poor.[28] . . . Do not oppress a stranger; ye knew a stranger’s life; ye were yourselves strangers in the land of Egypt.[29]

Quite interestingly, he admonished his addressees not to discount the role of the Talmud as a root-source of morality and custom.[30] Although Cardozo had departed from the strict praxis of Talmudic observance, he apparently drew from its corpus, moral principles that he embraced and extolled. On another occasion Rabbi Stephen Wise, father of Reform Judaism in the United States, and a strong Zionist, asked Cardozo to deliver the commencement address at the reform seminary he founded. Cardozo selected for his subject, “Values, or the Choice of Tycho Brahe.”[31] In his address, he began by distinguishing his own level of faith from these devoted clerics:

I have felt that to earn [the right to speak to you] I should be able to say to you that your beliefs are wholly mine, that the devastating years have not obliterated youthful faiths, and that in the darkness of the universe I can see with clearness and certainty a consoling shaft of light.[32]

He was not able to affirm this. He continued his address, though, referencing Jewish traditions and values, but it was basically a secular message infused with a reason for choosing the noble path regardless of the opposition.[33] He grounded his message in a tone intended to motivate these new graduates to “higher moral heights.” He praised this astronomer, Tycho Brahe, who spent himself on what many would have characterized as worthless star gazing,  By this appeal to the “unpopular,” Cardozo sought to impart to the graduating students the value of a profession, as theirs, who others may tend to discount.

By 1895 Cardozo was no longer attending weekly services at Shearith.[34] Although service attendance stopped, the religious values and moral upbringing to which he was previously exposed were too strongly engrained to be uprooted.  Just three years after he defended the orthodox practice of separation of men and women in the synagogue,[35] he made another speech distancing himself from religious tradition.  The occasion was a speech honoring the English statesman, Benjamin Disraeli, who was prime minister in 1868, and 1874-80. Like Cardozo, Disraeli, had a Sephardic heritage, except that his parents converted to Christianity when Disraeli was 13 years old.  Cardozo nuanced his accolades concerning Disraeli’s Jewish heritage, extolling his faithfulness to his race, and downplaying his faithlessness to his Jewish roots. [36] Rather than condemning Disraeli for his departure from the Jewish faith, he focused on the unlikelihood that a person of  lineage could forget their ties to birth and blood. Of him he said, “He had renounced his faith; but he could not renounce the memories or the spirit which had been bequeathed to him by ages of ancestors more loyal than himself.”[37] Cardozo pointed out how Disraeli worked tirelessly for his people, not denying his heritage, but identifying with Jewish causes, and laboring to liberate Jews from their employment disabilities.[38] To a lesser degree, Cardozo might have had himself  in mind.

Cardozo was not inclined to favor a person or a cause just because the person or the cause was Jewish. He was much too principled to let his religious identification blur the lines of right and wrong.  Because of Cardozo’s Sephardic heritage, he was aware of Catholic complicity in the persecution of Sephardim.  Nonetheless, he supported Alfred E. Smith, a Catholic for President of the United States in the 1928 election.  He believed that the real bigots and their anti-Jewish sentiments were in the other candidate, and the Republican party. He opted for a heterogeneous governmental make-up, and thus sought to defeat an all-Protestant government.

Perhaps nothing so outraged Cardozo as the rise of Nazism in Western Europe, and Hitler’s regime.  However, he did not always take the Jewish side, as illustrated in the Bremen affair.  The Bremen was a German passenger liner that flew a German flag with a swastika superimposed upon it.  Scheduled to depart from a midtown Manhattan pier on July 27, 1935, some communists snuck aboard the ship, cut down the flag and threw it overboard. A wild altercation ensued and five demonstrators were arrested and charged with unlawful assembly, and one for assaulting a police officer.  The case came before a Jewish magistrate, Louis Brodsky, who acquitted the five, and found the sixth defendant guilty.  Contained within his written decision were words that could be construed as demonizing the German flag and its emblem.  This caused a great outcry among the German sympathizers.  Cardozo expressed privately that Brodsky had failed to maintain proper judicial restraint and demeanor (by making the gratuitous comments). He was concerned that Brodsky’s defamatory statements and judicial impropriety would be imputed to the Jewish race and used against it to support accusations that Jews override professionalism with religious loyalties.[39] He was well aware of the propensity to impute the acts of one Jew to the whole “race.”

JEWISH CAUSES AND ASSOCIATIONS

Cardozo was not deeply absorbed in Jewish causes.  He certainly identified as a Jew.  He was aware of anti-semitism in the world around him, although his personal experiences with it were slim. In fact, he was admitted into the Century Club in Washington, an elite club that clearly discriminated against Jews.  Although Felix Frankfurter thought it compromising on the part of Cardozo to align himself with such a club, Cardozo was not in the least deterred.

Cardozo did sit on the Supreme Court with one of the worst bigots ever to hold a seat on that court. James Clark McReynolds was openly anti-semitic, and resented Cardozo’s and Brandeis’s appointments to the court. Upon  Cardozo’s nomination, McReynolds remarked “that to become a justice one only had to be a Jew and have a father who was a crook.”[40] When Cardozo read his opinions in open court, as was customary, McReynolds ordinarily covered his face with a brief or some other paper, as he did at Cardozo’s swearing-in ceremony.[41] Although concurring in some of Cardozo’s opinions, he never wrote “I concur” in any signed by Cardozo.  Nor did McReynolds attend any of the three memorial sessions the Court held for Cardozo after his death.

Cardozo was certainly not callous to others who were the target of anti-semitism. One time Cardozo’s law clerk was denied the purchase of a house after signing a contract, on the basis of a restrictive covenant in the deed, prohibiting the sale of the property to Jews. [42] Cardozo was outraged and wanted his clerk to sue.

Cardozo was not a joiner when it came to religious affiliated-organizations.  As an adult he rarely attended synagogue, although he remained a life long member of Shearith Israel.  Intellectual relationships moved him more than the spiritual ones.  He did join the Judeans, a social-professional elite club whose members met occasionally to discuss matters of peculiar interest to Jews. It combined the intellectual with the spiritual `in  a blend palatable to Cardozo.[43]

Cardozo possessed mixed feelings about the Zionist movement.  At one point he felt distanced from its aim: the establishment of a Jewish homeland in Palestine secured by law.  He did not “see how it would help me walking up Fifth Avenue in New York if there were a Jewish state in Palestine.”[44] However, when pressed one year later, he capitulated and (with some reservation) he signed an application and became a member of the Zionist Organization of America (ZOA).  He even gave permission for the organization to use his name and a letter of support. It was about then, in November, 1917, that England issued the Balfour Declaration which stated that:

His Majesty's Government view with favour the establishment in Palestine of a      national home for the Jewish people, and will use their best endeavours to             facilitate the achievement of this object, it being clearly understood that nothing         shall be done which may prejudice the civil and religious rights of existing non-            Jewish communities in Palestine, or the rights and political status enjoyed by Jews             in any other country.[45]

Cardozo believed that England should  keep its word. Nonetheless, it was clear that Cardozo’s nature was not of the variety suitable for extended “warring” over causes.  Nor was his energy level and frail health conducive for Zionist battles.

Cardozo joined the General Committee of the American Jewish Committee (AJC) sometime in the 1920s. The avowed purpose of the AJC was to secure civil and religious rights for Jews wherever they resided.[46] This was a moderate position on Zionism, compatible with Cardozo’s viewpoint. He mistakenly thought that it was a popular view with no dissent, until he was informed that many American Jews took a more militant stand on Zionism and opposed the AJC. He sat on its Executive Committee for a season, starting in 1927 and ending when he was appointed to the Supreme Court in 1932. He was comfortable in that role and in that purpose.  However, he did not have the energetic drive for leadership and his participation was modest.  Additionally, he was a member of the American Friends of Hebrew University in Jerusalem[47] and also sat on the executive committee of the Jewish Welfare Board.  Just lending his name to these Jewish organizations augmented their stature.[48]

Cardozo was reared on Jewry and in the orthodox synagogue.  His relatives held important positions in the synagogue. Yet, it did not capture his neshoma (inner soul). Nothing, in fact, generated for him the type of passion that he found in the law.  His alignment with Jewish causes seemed like it was out of a perfunctory “moral-driven” duty, rather than springing from a heart-felt desire.  To maintain an orthodox way of life would separate him from society; and make it very difficult to be accepted by the larger gentile-dominated community.  Orthodoxy limits socialization because of the dietary laws,[49] Sabbath practices, and feasts, all which impose restrictions on “outside contact.”  Keeping the law as an orthodox Jew would have virtually disqualified him to be on the High Court since it met for Saturday conferences,[50] clearly work proscribed by Torah.[51] Orthodoxy would simply not have served his lofty goals and ideals.  Neither would it satiate his spiritual needs. In the modern world of America, Cardozo was comfortable as an assimilated Jew, who could attain his aspirations in a gentile world. Palestine and the Jews “over there” held only an abstract interest for him.  Nonetheless, although his national identity was clearly American, his religious background did break through in his identification with the progressiveness of the New Deal program.

THE NEW DEAL

Jews voted overwhelmingly Democratic beginning with Al Smith, in the 1928 national election for President. Cardozo voted for Smith; hence, he voted against the man who was to name him to the Supreme Court bench, Herbert Hoover.  Perhaps Hoover was inclined to name a Jew to the High Court to engender the Jewish vote in the next election. Or perhaps he was sincere in his desire to name the best person to fill the Holmes seat on the court. Nonetheless, though the Republicans from Lincoln forward captured the Jewish vote, now the tide had turned.  Franklin Roosevelt in the next four national elections, beginning in 1932 would attract 75-90% of the Jewish vote.  The question is why?  Why were Jews prone to vote against the party of Lincoln, and instead embrace the Democratic party?  Perhaps the reason is grounded in a collective religious culture, and memory.

The Hebrew Bible is fraught with social justice motifs.  The poor, the widow, the orphan, the stranger and the homeless are all “souls” who require help and attention.  The Torah is filled with laws that enjoin the able Jew to go to  aid Jewish brethren and the stranger in the land, as well. One law is illustrative.  The Israelites were not to cut the corner of their fields, but were to leave the gleanings so that the stranger, hungry and tired, would be able to obtain food.[52] Throughout history there is a record of Jewish philanthropy on a wide scale, particularly prominent among wealthy Jews undertaking to reduce the plight of the less fortunate, and to provide enhanced education. Then there is the concept of the work of the Messiah, who was to come to “preach good news to the poor . . . bind up the brokenhearted . . .  proclaim freedom for the captives and release from the darkness for the prisoners [and] . . . to comfort all who mourn.”[53] This provided a model for Jewish people.

Another explanation is that the common historical experience of the Jews makes them more sensitive to the needy.  The Jewish experience is one of captivity, oppression, persecution, and homelessness, on a national level.  Under this argument, the Jew identifies with the underprivileged, and the public charges, and is motivated to relieve the distress of these unfortunates.  Written on the Statue of Liberty monument that greets immigrants into New York’s City’s harbor are the words penned by Emma Lazzarus.

Give me your tired, your poor, Your huddled masses, yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest- tost to me, I lift my lamp beside the golden door![54]

Yet, if the explanation for the Democratic “turn” is religious and historical, the question still remains why did it happen in this period, and not prior.

Jewish immigration to the United States burgeoned in the first half of the 20th century.  They came from Russia, Poland, and other Eastern European countries, and from other places throughout the globe, all in search of a better life free from monarchical and despotic rule, and economic limitations.  Those who could read English who passed by the Statue would have noticed the inscription.  These immigrants were labor-oriented.  They proceeded through the tough times, including the 1929 stock market crash and the subsequent declining economy, eventuating in bread cues, soup kitchens, and no work.  They stood in long lines awaiting their turn to fill out job applications, usually an exercise in futility.  They looked for a solution.  Many found it in the labor movement. Some came with socialist ideals acquired from association with organizations in the East, from where many hailed. These possessed a progressive bent.

Perhaps the answer is “all of the above,” contributed to the “turn,” and it lies in the party which was perceived as being best for the Jews. In the New Deal era it was the progressive party that attracted the Jewish vote.  Benjamin Cardozo was fearful of the anti-semitism that he perceived pervaded the Republican party, and had great concerns about monolithic Protestantism inundating the United States government.

For many, the attention was squarely on the U.S. Supreme Court who would decide the winner of the contest between the worker and the company.  It did not go unnoticed that by 1932 there sat Louis Brandeis, and the younger recent appointee, Benjamn Cardozo, two Jews out of nine.  Perhaps some even knew that Emma Lazarus, who penned the poem greeting the immigrants, was Justice Cardozo’s first cousin.

Cardozo was progressive, suitable for the times, although by today’s standards he would not be accounted as liberal, particularly in the area of civil liberties. Nonetheless, a person must be judged by the historical milieu in which he or she lives.  He empathized with the plight of the underprivileged, and saw the value in government regulation to curb the abuses of power and base human instinct.  Certainly, his Jewish heritage and his awareness of it, and the history of the Jewish people, inculcated within him, certain values for minorities.  Yet when it came to “religion” he secularized, which neutralized any inclination toward religious bias, and enlarged his affinity toward the human race. Cardozo defined religion as the “submergence of self  in the pursuit of an ideal.”[55] He was not prone to side with the “religious” just because a case presented a religious issue.[56]

JEWISH JUSTICE

Justice Cardozo was well aware of the plight of the Jewish people, including  persecutions, exiles, and discrimination throughout the ages.  He was also most certainly appraised of his own Sephardic heritage and background.  Although it is unclear whether any of his ascendants from Spain were conversos,[57] he nonetheless was painfully cognizant of the forced conversions and coercive methods employed to transform the Jews on the Iberian Peninsula to Catholicism.  Growing up in the Sephardic synagogue, he could not escape an awareness of the past Inquisition in Spain and other countries which established inquisitions with the Church’s permission, and their propensity to hunt down these conversos and accuse them of  “Judaizing.”  Because the conversos were baptized (willingly or unwillingly), they were under the jurisdiction of the Catholic Church; and any suspected  “heretical” behavior would subject the victim to merciless interrogation, imprisonment, torture, banishment, and even death. [58] This knowledge, coupled with his own “Hebrew” upbringing, certainly elevated his sensitivities to the plight of minorities and to some level of empathy. In fact, it certainly shaped a part of his world view and judicial philosophy and approach to decision-making. His devoted friend, Irving Lehman, a judge on the New York Court of Appeals, who memorialized him at a meeting of the American Bar Association, just months after his passing, recognized the pervasive influence of Cardozo’s Sephardic heritage when he said:

His ancestors were driven from the Spanish peninsula more than four hundred years ago because they would not abandon the faith of their fathers. . . . The same spirit which impelled Justice Cardozo’s ancestors to hold fast to their faith and their principles, though it made them homeless outcasts, animated Justice Cardozo.[59]

In addition to this specific “transferred Sephardic experience,” Cardozo possessed a shared-heritage, rooted in the long history of the Jewish people from Egypt, to Mount Sinai, to Israel and its dispossessions and  common sufferings, to the systematic discriminations in Russia and other parts of  Europe.  Although his bouts with anti-semitism were slight, he was “exposed” to the knowledge of the collective plight of the Jewish people because they were a people and they were Jewish.  The Chmielnicki massacres in Poland, the  Dreyfus Affair,  the “Protocols of the Elders of Zion,” the Pogroms in Russian, and the Blood Libels and Deicide accusations throughout the ages, were all directed at the Jewish people as a collective whole.  This shared heritage of suffering also inundated his being, and was an influence on his life’s works.

Cardozo, with a kind disposition, manifested a warm sensitivity in case decisions involving the masses of unemployed, the pension-less, and all peoples who were economically depressed.  These were “his” people and it was within his power to “bring them out of Egypt,” in a type of modern day Moses motif.  Because he secularized to a large extent, Torah observance changed (in his psyche) to application of Jewish law-derived moral principles, and the Jewish “nation” was transformed to the object of masses of suffering people. Cardozo’s inner desire to relieve the misfortunes of the downtrodden was consistent with New Deal philosophy.  It was also consistent with, and even motivated by,  his Jewish “transferred experience” and “shared memory.”  Like the heroes in the Horatio Algier books, Cardozo perhaps saw himself as the protagonist who “triumphed” by saving the less fortunate.

When it came to individual rights and liberties as we understand them today, Cardozo did not take a liberal stand. In these areas he manifested a deference to state legislation as he did to New Deal legislation.  This resulted in a surrender to the states in criminal matters and individual liberties. What appears to be a bifurcated approach, is really an integrated one, resulting in economic progressivism, but not federal protection for individual liberties.   In part, his Jewish background and collective historical identity, explains his propensity toward New Deal liberal legislation, which seeks to alter the status quo in a manner that extricates people from hopeless plights.  And, his approach to individual liberties and deference to the state, manifests his identification with society as paramount over the individual. This view was driven in part from his view  the Jewish view  of the collectivity of Jews as one people-hood, seeking to triumph in a world antagonistic to its survival.  To Cardozo, it was the triumph of the corporate unity of “society,” for the benefit of the whole, sometimes at the expense of the individual. It was the triumph of the Jewish people who endured individual sacrifices imposed on the Jews throughout history.  It was a “new deal” that he hoped would ultimately lead to a “great society.”

EULOGY

Cardozo suffered a heart attack on December 10, 1937, and still another, nine days later. The downward slide began. Seven months later he suffered a coronary thrombosis and died.[60] His funeral occurred two days later in accord with the Jewish custom of quick burial. The assistant minister of Shearith Israel synagogue presided over the ten minute orthodox service. His remains were taken to Cypress Hills Cemetery where he was laid to rest next to his mother and father and siblings.

Although he had long since ceased being a devout Jew, the Jewish community claimed him as one of their own.  The American Hebrew said that “Justice Cardozo was a devout Jew.”  His congregation, Shearith Israel, where he rarely appeared, recognized that “he rendered distinguished service in successfully defending the ancient rituals, rites and customs of the Congregation . . .  .”  Rabbi Abraham Feinberg in a radio eulogy said that Cardozo “combined the knowledge of a scholar, the sympathies of a humanitarian, the literary touch of an artist and the hunger of a saint to preserve his highest vision.”  The rabbi at Temple Israel on Long Island eulogized him, saying, “The life of Benjamin Cardozo is a picture of what Americanism, harmoniously synthesized with Judaism, can achieve for the welfare of the country and humanity.” The Brooklyn Jewish Examiner mused, “The name of Cardozo reflects a luster upon Jewry which cannot be taken away.”[61]

Benjamin Cardozo, though, belonged not just to the Jews, but to humanity.   Justice Learned Hand, in a radio eulogy highlighted his wisdom when he said, “[T]he wise man is the detached man . . .  . He was wise because his spirit was uncontaminated, because he knew no violence, or hatred, or envy, or jealousy, or ill-will.”  Conservatives were not bashful about claiming Cardozo as belonging to the Nation, as did George Wharton Pepper, a former republican senator from Pennsylvania, who delivered a speech at the Supreme Court’s memorial service. He characterized Cardozo’s liberal label to mean that “he had a passion for liberty . . . and that . . .  a liberal ought to mean what every patriotic American aspires to be.”[62] He, in effect used his address to politicize Cardozo’s life by appropriating his ideals for the Republican party.  Charles Evan Hughes, the Chief Justice of the Supreme Court during the Roosevelt era, and a Republican had this to say about Justice Cardozo:

His gentleness and self restraint, his ineffable charm, combined with his alertness and mental strength, made him a unique personality. With us who had the privilege of daily association there will ever abide the precious memory not only of the work of a great jurist but of companionship with a beautiful spirit, an extraordinary combination of grace and power.[63]

It was Felix Frankfurter, the man who replaced Cardozo as Associate Justice of the Supreme Court (and the third Jew on the Court), who delivered his evaluation of Cardozo in a joint issue of the Harvard, Columbia and Yale law reviews.[64] Like Hughes, he noted that Cardozo manifested “a beauty of character.” [65] Oliver Wendell Holmes labeled him “a great and beautiful spirit.”[66]

“Beautiful spirits” are not born but are created on the anvils of wisdom, circumstance and fortune.  As no two snowflakes are identical because no two have had precisely the same shaping experience, so Cardozo was distinguished by his genetic make-up and his environmental experience.  He inherited his intellect but his personality and approach to life was in part nurtured by externalities. Was it the shame of his father, the death of his mother at such a tender age, followed by his father, the death of his twin, the relationship with his sister, Nellie, and her death, that made him the person that he was?  Or was it the transferred memory of his Jewish past? Yes, it was all of this and more.

The values embraced by Justice Cardozo must be gleaned from his life’s works, as a student, a lawyer, a judge, and a person.  Often one’s final word in a last will and testament inform people of the priority of values.  Cardozo first provided for perpetual care for the graves of his parents, siblings and himself.  He gave an endowment to Mt. Sinai Hospital in the Bronx in memory of his sister Emily.  He bequeathed a hefty sum, (for 1938) of  $25,000.00 to the Jewish Federation for the Support of Jewish Philanthropic Societies.  He left money to his cook, chauffeur, and friends who had cared for him and his family through the years.  Neither did he forget his former law associates in his firm. Finally, the residual of his estate, amounting to about $188,000.00, he left to Columbia University to endow a Professorship of Jurisprudence.  Family, Jewish causes, friends and the law, were his companions in life, and they were the recipients of his affection in death.

Mr. Justice Cardozo has reached the end of his journey. It has been a journey of loving service to the law and to those who live under the law.  [S]o long as our common law and our Constitution persist, men will pay tribute to the memory of this shy and gentle scholar, whose heart was so pure and whose mind was so bold.[67]

CONCLUSION:

Benjamin Cardozo exemplifies the modern Jew who is able to maintain a Jewish identity while operating in a secular world, in his case – a justice on the highest court in the Land.  This comes with its own conflicts. It is akin to Paul, who became all things to all people – to the weak he became weak.  Cardozo empathized with the less fortunate.  Shaped by the shared experience of being a Jew, with knowledge of the swoop of Jewish history, he was poised to identify with the weak, albeit, the collectivity of the weak, as opposed to simply the individual. He identified with the groups of those who were homeless, those who were pension-less, those who were jobless. That he did in the myriad of cases that he was called upon to judge, both in the state appellate court and the U.S. Supreme Court venues. His progressive stands on many issues reflected his experience and desire to extricate the needy from their “Egyptian” enslavement.  Noteworthy, though, was his evenhandedness, and essentially, non-partisan decision-making.  He followed his philosophy and his gut as he carved new precedent, and was not reserved about taking stances against the majority or the political swing of the day. Named by a Republican President, and yet seemingly Democrat on a personal level, he was beholden to no man’s party or program. He exhibited moral integrity, and his uprightness perhaps made it more palatable for Jewish appointments to the court in the years that followed; and today’s constituency where the High Court justices are one-third Jewish.

 

* Adapted with permission from an article that appeared in Vol. 28:1, The Messianic Outreach.

 


[1] This biographical sketch is extrapolated, in part, from Arthur Goodhart, Five Jewish Lawyers of the Common Law (London: Oxford University Press, 1949), 51-62; Andrew L. Kaufman, Cardozo (Cambridge, MA: Harvard University Press, 1998), 3-39; Richard Polenberg, The World of Benjamin Cardozo: Personal Values and the Judicial Process (Cambridge, MA: Harvard University Press, 1997), 1-43.  Many have taken their hand at writing Cardozo’s biography. His executor and friend, Irving Lehman destroyed some of Cardozo’s correspondence to protect Cardozo’s privacy and his apparent wishes.  Lehman also denied access to biographers who requested to examine the surviving correspondence. Pollenberg, 4. Kaufman’s and Pollenberg’s biographies of Cardozo are the most recent and are contrasted in Clyde Spillenger, “Cloistered Cleric of the Law,” University of Chicago Law Review 66 (1999):507-526.

[2] The New York Supreme Court has two divisions: the trial division and the appellate division.

[3] Curiously, Horatio Algier was later alleged to be involved in molestation  of young boys.  He “dropped out” of teaching, focusing instead on writing his boys’ novels. Polenberg, 19-2. Cardozo also benefited from the writings of Matthew Arnold, who pressed the theme of “the instinct of expansion as a factor in human progress.” Five Jewish Lawyers, 41.

[4] In that speech, entitled, “The Altruist in Politics,”  he extolled the virtues of capitalism over communism, which he said thwarted the instinct of expansion by substituting the energy of the government for the energy of the individual. Polenberg, 38.

[5] Law school at Columbia was two years until the year that Cardozo entered, and for that entering class and beyond, it was changed to three years.  During his second year, a new dean of the law school took the helm.  The departing dean was more blackletter law oriented, assigning the study of hornbooks.  The new dean, out of Harvard Law School, was steeped in the case method of studies.  He was harder to approach than the departing dean.  Perhaps for these reasons Cardozo, along with many others, chose not to return for the third year. Kaufman, 48-49.

[6] See note 67.

[7] For two articles seeking to explain this phenomena see Michael E. Parrish, “The Great Depression, the New Deal, and the American Legal Order,” 59 (1984): 723-50; Mark Tushnet, “The New Deal Constitutional Revolution: Law, Politics, or What?” 66 (1999): 1061-80.

[8] Benjamin Cardozo, The Nature of the Judicial Process (New Haven, N.J.: Yale University Press, 1921).

[9] Richard A. Posner, Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990),  27-28. The school, or philosophy of pragmatism was probably founded in the last quarter of the 19th century by Charles Sanders Peirce, and it included such notables as William James and John Dewey. For a look at the 19th century origins of  pragmatism and the personalities that fueled it see Herbert W. Schneider, A History of American Philosophy (New York: Columbia University Press, 1946), 513-539; Morton White, Pragmatism and the Scope of Science in Paths of American Thought, eds., Arthur M. Schlesinger, Jr., & Morton White (Boston: Houghton Mifflin, 1963), 190-202.  For a biographical look at one of the early formulators of the school of Pragmatism see Alan Ryan, John Dewey and the High Tide of American Liberalism (New York: W.W. Norton & Co., 1995).  Cardozo has also been credited with being one of the American founders of sociological jurisprudence. Georges Gurvitch, Sociology of Law (New Brunswick, NJ: Transaction Publishers, 2001),  166-71; Moses J. Aronson, Cardozo’s Doctrine of Sociological Jurisprudence, Journal of Social Philosophy 4 (1938): 5-44, and a pioneer of the realism school of jurisprudence.  Beryl Harold Levy, Cardozo and the Frontiers of Legal Thinking (Cleveland: Case Western Reserve University Press, 1969), 19.

[10] Neither can a judge escape subjective circumstances, experiences and personal attitudes in decision-making.  Cardozo possessed old-fashioned conservative moral values.  This may have influenced his decisions in some cases.  See Robert N. Strassfeld, “Taking Another Ride on Flopper: Benjamin Cardozo, Safe Space, and the Cultural Significance of Coney Island” (2004): 2189-2240.

[11] Benjamin Cardozo, The Growth of the Law (New Haven, CT: Yale University Press, 1924).

[12] Benjamin Cardozo, The Paradoxes of Legal Science (New York: Columbia University Press, 1945).

[13] Benjamin Cardozo, Law and Literature and other Essays and Addresses ( New York: Harcourt, Brace and Co., 1931).

[14] There are no records of his circumcision.  However, it would have been almost unprecedented for parents, not exposed to persecution or threat, to forego the rite of circumcision, which is prescribed by the law of Moses on the eighth day for male children.  It is usually performed by a mohel (one trained by religious Jewish authorities), accompanied by religious prayers.  It may have happened privately in the home of the Cardozos without fanfare.

[15] Polenberg, 13.

[16] The Ashkenaz Jews who emanated from Germany named their children after the deceased.  Sephardic custom was to name a child after a living relative.

[17] Polenberg, 13.

[18] There is a prayer, often written on the prayer shawl, that is recited in Hebrew before adorning oneself: “Blessed art Thou, O Lord our God, King of the universe, who hast hallowed us by Thy commandments, and hast commanded us to enwrap ourselves in the fringed garment."

[19] Tefillin comes in two parts.  The first is a strap attached to a wooden box that contains Hebrew prayers: the strap is wrapped in a prescribed way on the left hand and the arm, with the box situated on the brachial portion of the arm.  The second is the head strap attached to a small box, containing the prayers, which is placed on the head with the box situated low on the forehead.  Deuteronomy 6:8, 11:18.

[20] See Jane S. Gerber, The Jews of Spain: A History of the Sephardic Experience (New York: The Free Press, 1992).

[21] See Miriam Bodian, Hebrews of the Portuguese Nation: Conversos and Community in Early Modern Amsterdam (Bloomington, Indiana: Indiana University Press, 1997).

[22] Arthur Hertzberg. The Jews in America: Four Centuries of an Uneasy Encounter (New York: Simon & Schuster, 1989), 19-24, 26-27, 184.

[23] Ibid. at 13-14.

[24] Ibid., 14.

[25] A decade or so later a dispute broke out in the synagogue over the mechitzah.  Some wanted to remove it in the fashion of the reform Ashkenaz.  Cardozo, although not in attendance, came back to argue that the separation should be kept.  He organized a petition drive and obtained 100 signatures in favor of keeping the mechitzah intact.  At the meeting called for the purpose of deciding the issue, he appealed to the congregation’s constitution which made reference to the separation.  He hinted that the matter could be settled in court should the congregation vote to change the tradition. Kaufman, 69-70; Polenberg, 180-81. It is interesting that Cardozo had already deviated from the Sephardic orthodox ways in his personal life.  Yet, he took the conservative, rather than the progressive, position, one that separated men from women and divided families during synagogue service, all seemingly contrary to his bent at the time.

[26] There would be a pronunciation of the “t” sound at the end of many words instead of the “s” sound, and the prominent “uh” sound in the place of some of the “ah” sounds.  The liturgy and the prayers, and cantations, would be somewhat unique to that strain of Jewry, sounding more eastern than its Ashkenaz counterpart.

[27] The annual cycle of Torah and Prophet portions from week to week have been the same for hundreds of years.  By determining the date of Cardozo’s bar mitvah, his reading for that morning is readily ascertainable.

[28] Exodus 23:9.

[29] Exodus 22:21.

[30] Polenberg, 178.

[31] Tycho Brahe (1546-1601) was born in what was then Denmark and now Sweeden.  He devoted his life to astronomy, charting the motion of the moon and planets, thereby enhancing our understanding of the movement of heavenly bodies. He also is credited with increasing the accuracy of calibrated telescopic equipment. http://www.aolsvc.worldbook.aol.com/wb/Article?id=ar073660&sc=-1

[32] Benjamin N. Cardozo, Values (New York: Jewish Institute of Religion, 1952) (An address delivered at the Sixth Annual Commencement Exercises of the Jewish Institute of Religion May 24, 1931.).

[33] Polenberg, 179-80.

[34] Ibid., 181.

[35] See note 25.

[36] Polenberg, 181.

[37] Ibid., 182-83.

[38] Ibid.

[39] Ibid., 184-85.

[40] Polenberg, 171.

[41] Ibid.

[42] In Shelley v. Kraemer, 334 U.S. 1 (1948) the Court established precedent by holding that states could not enforce racial restrictive covenants because to do so would be “state action” contrary to the Equal Protection Clause contained in the 14th Amendment to the Constitution.

[43] It is unclear when he joined, but it was sometime between 1897-1913. Kaufman, 87.

[44] Ibid., 175.

[45] The Jew in the Modern World, ed., Paul Mendes-Flohr & Yehuda Reinharz (New York: Oxford University Press, 1995), 582.

[46] Polenberg, 177.

[47] Ibid.

[48] Ibid., 176-77.

[49] Although Cardozo kept a kosher home, he would eat non-kosher food when dining out. Ibid., 182.

[50] Ibid., 171.

[51] Exodus 20:8-11; Deuteronomy 5: 12-14.

[52] In fact, as a result, Ruth, the Moabitess, gathered the fruit of the gleanings left by Boaz. They fell in love and married.  Book of Ruth. One successor in their direct lineage was David who became king of Israel.  Matthew 1:5-6.

[53] Isaiah 61: 1-2.

[54] http://www.barrypopik.com/article/468/give-me-your-tired-your-poor-the-new-colossus

[55] Polenberg, 192.

[56] In Hamilton  v. Regents, 293 U.S. 245 (1934), in a concurring opinion, he held that a state university could require students to take military training courses, and override their “conscientious objector” protest.  Here, Cardozo shrouded “religious pretense” with a healthy skepticism and thus relegated the cry of the First Amendment freedom of religion to a status subordinate to its “freedom of speech” counterpart. Polenberg, 185-93.

[57] Conversos, sometimes referred to as crypto-Jews, were very secret about their past.  His name, Cardozo (with the alternative Spanish spelling, Cardoso, betrays his Sephardic heritage).  The surname is also a famous name, not only in Sephardic circle, but also in Shabbatean circles.  See, for example, Gershom Scholem, Sabbatai Sevi: The Mystical Messiah 1626-1676 (Princeton, N.J.: Princeton University Press, 1973),  index 965 (Cardozo).

[58] For example,  Elvira del Campo, a converso woman, was suspected of observing Jewish rites evidenced by not eating pork, and putting clean linens on before the Sabbath, as she was accustomed to do in her home before she converted. Jacob Rader Marcus, The Jew in the Medieval World: A Source Book: 315-1791 (Cincinnati: Hebrew Union College, 1999), 195-201.

[59] Irving Lehman, Benjamin Nathan Cardozo: A Memorial (Stamford, CT, December 1938) (read at a meeting of the American Bar Association on the Twenty-Fifth of July, 1938). See also Lehman’s tribute to Benjamin Cardozo delivered to The Association of the Bar of the City of New York. Irving Lehman, The Influence of Judge Cardozo on the Common Law (Garden City, NY: Doubleday, Doran & Co., 1942) (The first annual Benjamin Cardozo lecture  delivered October 28, 1941 before the New York Bar Association).

[60] Polenberg, 236, 238.

[61] Ibid., 239.

[62] Ibid., 241.

[63] 305 U.S. xxviii (1938).

[64] Essays Dedicated to Mr. Justice Cardozo, Columbia Law Review, Harvard Law Review, Yale Law Journal (1939).

[65] Ibid., 246.

[66] Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers, Harry C. Shriver, annot. (New York: Central Book, 1936): 202  (Letter to Dr. John C.H. Wu).

[67] Homer Cummings, In Memory of Benjamin N. Cardozo, Address Before the Supreme Court of the United States (December 19, 1938).

 
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