Vol. 8 No. 3 (March 1998) pp. 126-127.

THE WORLD OF BENJAMIN CARDOZO: PERSONAL VALUES AND THE JUDICIAL PROCESS by Richard Pollenberg. Cambridge, Ma: Harvard University Press, 1997. 288 pp. Cloth, $29.95. ISBN 0-674-96051-3.

Reviewed by Howard Ball, Department of Political Science, The University of Vermont.


Benjamin Nathan Cardozo was a member of the New York Court of Appeals from 1914 and its Chief Judge from 1926 until his appointment as an associate justice of the U.S. Supreme Court in 1932. At the time of his appointment to the High bench, Cardozo's reputation as America's foremost state appellate judge was acknowledged by all in the legal profession as well as by politicians from both political parties. Unlike the contentious Brandeis nomination process a little more than a decade earlier, Cardozo was unanimously confirmed by voice vote within weeks of his being nominated by President Hoover. He served until his death in July, 1938.
Born in New York City in 1870 into an established Sephardic Jewish family, Cardozo's fame emerged while serving on the state court of appeals, especially in tort (MCPHERSON V BUICK MOTOR CO., 1916) and contract law. In his Storrs lectures at Yale, published in 1921 as THE NATURE OF THE JUDICIAL PROCESS, Cardozo answered the question of "what is it I do when I decide a case." He enunciated the concept of sociological jurisprudence, urging that judges interpret law by looking for its purpose and function. He was intensely opposed to Jerome Frank's notions of "legal realism," a theory that proffered that a judge's predilections and prejudices accounted for his judgments. As a state appeals judge and as associate justice on the U.S. Supreme Court, Cardozo expressed both liberal and very conservative views in cases he decided. He supported Roosevelt's New Deal economic and social legislation, while taking a very conservative stand in cases and controversies involving what he considered to be immoral, harmful, unethical, and criminal behavior.
Richard Pollenberg, the Goldwin Smith Professor of American History at Cornell University, has written a notable book suggesting that, much though Cardozo criticized the "legal realist" school of jurisprudential thought, his personal values and aesthetic life style (Cardozo was a life-long bachelor who lived with his older sister until her death--and then lived alone) had a great deal to do with the opinions formulated by Cardozo. The very well-written book traces the underlying values in Cardozo's opinions to his growing up in a very traditional, very private, "Victorian" environment. Pollenberg's thesis is a very lucid one. Drawing upon a host of primary sources, found in university, government, and private archives across America, the author shows, quite convincingly, that "Cardozo's entire career illustrated the importance of personal values in the judicial process."
Pollenberg reviews Cardozo's very puritanical life and five areas of jurisprudence: the insanity defense, tort actions involving universities and scholars working in them, cases involving gender, sexuality, and marriage, legal controversies involving religion and the state, and finally, criminals, law and the necessity of maintaining a system of "ordered liberty." He concludes that Cardozo's jurisprudence heavily reflected the values he grew to adopt while still a teenager privately tutored by Horatio Alger, Jr.
In cases involving morality, sexuality, religion, and the social order (examined in Chapters 4-6), Pollenberg cogently shows that Cardozo was guided by a very stern, nineteenth century puritanical code of conduct firmly rooted in his early life experiences. Cardozo claimed a judicial restraint based on his detachment from the human qualities and foibles described in the briefs and in oral argument. However, Pollenberg clearly shows the turmoil that haunted Cardozo as he reached judgments in these cases that indeed reflected his predilections rather than "pure [abstract] judicial reasoning." He had absolutely no empathy for someone who did evil yet claimed insanity as a defense (PEOPLE V HANS SCHMIDT case, 1915 ), an injured student who sued Cornell University for negligence (LOUISE HAMBURGER as an insulated, socially isolated person, V CORNELL UNIVERSITY, 1925), husbands who did all they could to end loveless marriages (the DEAN, HOADLEY, and MIRIZIO cases, 1925, 1927, 1928), conscientious objectors who claimed that religious beliefs exempted them from military service (HAMILTON V REGENTS, 1934), and murders such as Frank Palka (PALKO (sic) V CONNECTICUT, 1937) "who thought to find legal loopholes to escape the punishment they deserved."
Cardozo's opinions validating Roosevelt's New Deal legislation (STEWART MACHINE CO. V DAVIS, 1937, HELVERING V DAVIS, 1937) likewise reflected Cardozo's personal assessment of social circumstances and of the positive role that ought to be played by the state in remediating many of these unfortunate plight of the poor, the elderly, and those without jobs. Pollenberg's writing is excellent as he paints a portrait of an allegedly detached, aesthetic jurist who nevertheless rules harshly, conservatively, in certain areas, yet liberally in others. Although Cardozo argued that appellate judges should treat individual grievances as if they were merely "algebraic symbols," his actions pointed to another explanation.
Pollenberg has written an excellent book, one that is well documented and clearly written, that makes the strong case that Cardozo was in reality "more the moralist than the mathematician." He shows, with depth, insight, and some degree of compassion the continuing struggle Cardozo faced in his effort to be a detached, dispassionate appellate judge from his position as an insulated, socially isolated person, who possessed a set of ingrained values about good and evil in the world. That he often failed in his efforts at scientific detachment in adjudicating cases reflects the impact of his personal values on his decision-making. Pollenberg must be thanked for his lucid analysis of a very complex American jurist's jurisprudential behavior.


Copyright 1998 by the author