CARDOZO by Andrew L. Kaufman. Cambridge, MA: Harvard University Press, 1998. 729 pp. Cloth $55.00. ISBN 0-674-09645-2.

Reviewed by Sue Davis, Department of Political Science, University of Delaware. Email: Suedavis@udel.edu.
 

Many LAW AND POLITICS BOOK REVIEW readers may know Benjamin Cardozo best for his opinion in PALKO V. CONNECTICUT (1937). Those who have dipped into the law of torts may also be familiar with his groundbreaking opinion in MCPHERSON V. BUICK MOTOR COMPANY (New York Court of Appeals, 1916). Additionally, many of us have read—though perhaps not recently—THE NATURE OF THE JUDICIAL PROCESS (1921). Anyone who wishes to learn more about Cardozo, will appreciate Andrew L. Kaufman’s encyclopedic treatment of the life and work of this important figure in American law.

Andrew L. Kaufman, who served as law clerk to Felix Frankfurter, is the Charles Stebbins Fairchild Professor of Law at Harvard Law School and has authored textbooks on professional responsibility and commercial law. In 1957, Frankfurter and Joseph Rauh, who was Cardozo’s last law clerk and Frankfurter’s first, asked Kaufman to write Cardozo’s biography. They gave him the justice’s personal files. Additionally, Cardozo’s surviving relatives granted interviews and access to his correspondence. Kaufman has mined numerous additional documents, including notes that Cardozo took in his undergraduate courses. The result is rich in detail and provides lengthy descriptions of Cardozo’s work. It is largely favorable to the justice and has somewhat of a flavor of an "authorized" biography. Nevertheless, although Kaufman seems to go out of his way to note that Cardozo’s personal life was in no way other than proper by the standards of the early twentieth century (he was not gay, for example), his analysis of Cardozo’s judicial work is balanced rather than overly laudatory.

Benjamin Nathan Cardozo was born in 1870 in New York City. He had a twin sister and four older siblings. Horatio Alger served as the youngster’s tutor for a couple of years before Cardozo entered Columbia College at the age of fifteen. He attended Columbia Law School for two years but left without a degree along with an overwhelming majority of his class amidst the controversy over the introduction of the case method. At the age of twenty-one, Cardozo joined his brother in their father’s old law firm. They remained partners until his brother’s death in 1909. Kaufman believes—and has supporting statements from acquaintances of Cardozo’s —that an important factor in his decision to pursue a career in law was a desire to clear the family of the disgrace of his father’s resignation from the New York Supreme Court in 1872 in the face of charges of corruption. Cardozo built a successful practice in commercial law; he did considerable appellate work and became increasingly well known throughout the state of New York as a lawyer’s lawyer. In 1913, he was elected to the New York Supreme Court; within five weeks he was designated to sit on the New York Court of Appeals. In 1917, he was appointed and then elected as a regular member of the Court of Appeals. He became chief judge in 1925. In 1932, President Herbert Hoover appointed him to the United States Supreme Court where he served until his death in 1938.

Kaufman devotes the first 196 pages of the volume to Cardozo’s life and work before he became a judge. In this portion of the book one encounters lengthy descriptions of Cardozo’s college courses, the cases that he argued from the beginning of his law practice, and details of his family life—including the close relationship he maintained with his older sister Nellie until her death in 1929—may prompt readers to skip ahead to Kaufman’s examination of Cardozo’s judicial career. Nevertheless, some readers may find it worthwhile to sift through the details of Cardozo’s early life largely because of the connections that Kaufman posits between Cardozo’s jurisprudence and his early education and experience. When he was only twenty-four years old, for example, the future author of THE NATURE OF THE JUDICIAL PROCESS expressed his belief that the law must be responsive to reason and common experience.

Kaufman’s treatment of Cardozo’s judicial career proceeds as follows. He begins with a discussion of the model of judging that Cardozo outlined in THE NATURE OF THE JUDICIAL PROCESS. He then devotes nine chapters to Cardozo’s decision-making on the New York Court of Appeals, organizing the cases by subject, including equity, torts, contracts, constitutional and international law, criminal law and property, corporations, the legal profession and legislative policy. Kaufman devotes the final portion of the book to Cardozo’s appointment (one chapter) and his work on the Supreme Court (five chapters). Continuing to discuss the cases by subject, he moves from state regulatory power to national regulatory power, to civil liberties, and finally, to race.

Three themes emerge from the lengthy analysis of Cardozo’s decision-making. First, in each area of Cardozo’s decisions Kaufman makes an effort to link Cardozo’s prescriptions for judging to his actual decisions. Second, Kaufman consistently presents Cardozo’s jurisprudence as moderate and restrained, firmly grounded in the legal traditions of his time, but also creative. Thus, his decision making balanced the four methods of decision making that he described in THE NATURE OF THE JUDICIAL PROCESS (logic, evolution, tradition, and sociology). Kaufman seeks to demonstrate that Cardozo’s approach grew out of his desire to reconcile the rule of law with a judge’s tendency to be influenced by his own values. Cardozo argued that a judge should rely on community rather than personal values and he emphasized "customary morality". He once stated that, "My duty as judge may be to objectify in law, not my own aspirations and convictions and philosophies, but the aspirations and convictions and philosophies of the men and women of my time." (p. 215) Cardozo encouraged judges to broaden their views by searching for values outside their own inclinations. Kaufman calls this a "chastened subjectivism, made more manageable by being acknowledged and observed." (216) Finally, it is very important that Kaufman places Cardozo’s decision making in historical context while he also relates the issues of the early twentieth century to the current controversies concerning the proper role of the judge. He does not allow Cardozo to take sides in the current debate, however, and argues that Cardozo’s arguments are useful to both sides of the modern argument. All of this is consistent with Kaufman’s apparent commitment to a neutral, balanced treatment. Some readers may find this attractive while others may find that it lends an unappealing blandness to the book.

When I finished Ed Cray’s CHIEF JUSTICE: A BIOGRAPHY OF EARL WARREN (1997), I felt that I understood Warren as a person and a politician. Unfortunately, Cray’s book does little to illuminate the former Chief Justice’s decision making. A very different kind of biography, Richard Brisbin’s JUSTICE ANTONIN SCALIA AND THE CONSERVATIVE REVIVAL (1997) goes far to explain the values that underpin Scalia’s decisions but conveys very little about the justice’s non-judicial life. Kaufman appears to have attempted to explain both the personal and the judicial Cardozo. He fails, however, to provide the reader with a sense of what Cardozo was like as a human being. Perhaps, that is not a failing of Kaufman’s research or his writing but simply a consequence of Cardozo’s very private nature. He may have been such a private person that it is impossible for a biographer to get to know him.