A Conception of Social Needs

...Lawyers, judges and scholars—in fact whoever knew him or knew about him— justly lionized Cardozo...

...In any event, when eminent lawyers and judges spoke of Cardozo as a saint, they meant that he was a man of great virtue and benevolence...

...that, as Hand put it, "the purity and elevation of his character set him in a class apart...

...One can quarrel with the adjective "mannered," but I doubt any student of legal opinions will question that Cardozo was one of the great stylists, comparable to Marshall and Holmes...

...and the resultant is an outlook on life, a conception of social needs, a sense in [William] James' phrase of 'the total push and pressure of the cosmos,' which, when reasons are nicely balanced, must determine where choice shall fall...

...The only evidence I could find of Cardozo's alleged pride is the satisfaction he took in being a Sephardic Jew whose ancestors settled in America before the Revolution and were famous rabbis, scholars and community leaders...

...Marshall, Holmes and Brandeis each achieved their stature as justices of the U.S...

...People remarked about his courtesy and kindness, his integrity and serenity of character...

...Cardozo was "a human being and not a bloodless, idealized essence," he says...

...Only about 100 pages are devoted to Cardozo's private life or character, while almost five times that many focus on his 23 years as a practicing lawyer and 25 years as a judge...

...When some members of the congregation agitated for ending the traditional separation of the sexes at services, he attended the meeting called to deal with the issue and spoke eloquently against the change...

...Hand, who was never appointed to the High Court, nevertheless earned the admiration of his peers and the public as a judge of the U.S...

...His The Nature of the Judicial Process (1921) was the first book by a judge to analyze the process of judging...

...I am reminded of the late Professor Harry A. Wolfson once telling me that, if asked, he identified himself as a "nonobservant Orthodox Jew...

...Kaufman argues that the adjective is inappropriate...

...Indeed, if I had to choose, I should have to say that there is matter for religion in any and every activity that has relation to the good life in all its fullness and perfection...

...In 1932 Herbert Hoover named him to the Supreme Court, where he served a mere five-and-a-half years until his death at age 68...

...The congregation remained strictly Orthodox...

...The first of these renowned phrases appears in an opinion that, as of 1990, had already been cited 653 times...

...Cardozo, in one of his most famous opinions, changed the law and held that a manufacturer is liable for negligence to the ultimate consumer even though there was no contractual relationship between them...

...The biographer does not, however, slight his subject's deep Jewish commitment both before and after his rising to the High Court...

...The proportion is fully justified, for the law was by far the major part of his life...

...Commenting on a poem by Alfred Noyes in a talk at Stephen Wise's Jewish Institute of Religion a year before his appointment to the Supreme Court, Cardozo told his audience: "The submergence of self in pursuit of an ideal, the readiness to spend oneself without measure, prodigally, almost ecstatically, for something intuitively apprehended as great and noble, spend oneself one knows not why—some of us like to believe that is what religion means...

...In Andrew L. Kaufman he has attracted precisely the right biographer...

...His relatives included the Nathans, the Seixas family and the Lazarus family (Emma Lazarus was a cousin...

...Nothing absolute...

...Cardozo established his preeminence on the New York Court of Appeals...

...Thus, on average, according to Kaufman, he produced 30 majority opinions, plus one concurring and one dissenting opinion per year, and often turned out yet another for the consultation of the judges...

...As a trustee of Columbia University, he was a member of the Committee on the Adviser to Jewish Students...

...The manufacturer had sold a car to a dealer, who then sold it to the plaintiff...

...He had many friends and was fond of his various cousins and of his four sisters and brother, but had little time to spend with them...

...Like Holmes, author of the classic Common Law (1881), Cardozo also gained prominence for his significant contribution to jurisprudence...

...He maintained his membership even though he stopped attending services and observing the ceremonial Orthodox laws soon after celebrating his Bar Mitzvah there...

...In the 18 years that he served on the Court of Appeals, he wrote 566 opinions for the court and 16 dissents...

...and a person should be aware that "danger invites rescue...

...The evidence showed that Buick, the defendant, had not inspected the car reasonably...

...He also held important positions on the American Jewish Committee, served on the board of governors of the American Friends of the Hebrew University in Jerusalem, and on the executive committee of the Jewish Welfare Board...

...In the Introduction to his celebrated 1921 work, the most important of his four books, Cardozo says: "In every judge, as in every man, there is a stream of tendency, that may be called a philosophy, that directs his thought and action, a stream of forces that tug at him, inherited instincts, traditional beliefs, acquired convictions...

...His closest friends included such leading American Jews as Rabbi Wise, Louis Marshall, Felix Frankfurter, Abram Elkus, Irving Lehman, and Justice Brandeis...

...Judge Richard A. Posner, in his Law and Literature, refers to Cardozo as "the most mannered of the great judicial stylists...

...Reviewed by Milton R. Konvitz Professor emeritus of law, and of industrial and labor relations, Cornell University' Benjamin Nathan Cardozo ranks with John Marshall, Oliver Wendell Holmes Jr., Louis D. Brandeis, and Learned Hand as one of America's greatest jurists...

...Precedents "drawn from the days of travel by stagecoach," he wrote magisterially for the majority of the Court of Appeals, "do not fit the conditions of travel today...

...This may explain, too, his ability to write opinions rapidly...

...In his will, he left a sum to endow a bed at Mount Sinai Hospital in memory of his twin sister Emily, and $25,000 (in 1990 dollars $325,000) to the Federation for the Support of Jewish Philanthropic Societies...

...Although it is not Kaufman's point, one comes away from his masterful study persuaded that Cardozo was trying, by hard work, to fulfill God's commandments to the Jews and to all men...

...This monumental volume belongs alongside Gerald Gunther's outstanding 1994 life of Hand...

...e.g., a trustee is expected to live up to "the punctilio of an honor the most sensitive...

...Many others described Cardozo as "saintly...

...He sees "a strain of aristocratic elitism" as well as one of "vanity" in his subject, and declares: "He had a saintly manner and was saintly toward Nellie, but he was no saint...

...Learned Hand said that by the common consent of the bench and bar of New York State, Cardozo had no equal, that he was a person who "by the gentleness and purity of his character, the acuteness and suppleness of his mind, by his learning, his moderation, and his sympathetic understanding of his time has won an unrivaled esteem wherever else he is known...

...Later, in his book on judging, he expanded upon its theme: "Nothing is stable...

...Supreme Court...

...We learn, for example, that Cardozo enjoyed belonging to the Spanish and Portuguese Congregation Shearith Israel...

...Moreover, unlike judges today, he did his own research and his own writing, in longhand...

...He would have been a boor not to have felt proud of these distinguished relations, and the failure to recognize this is, in my view, the book's one serious misjudgment...

...A "conception of social needs" determined where Cardozo's choice should fall in MacPherson v. The Buick Company (1914...

...Court of Appeals for the Second Circuit...

...Cardozo's ruling eventually became virtually universal law in the United States, and is studied by every law school student...

...A bachelor, Cardozo lived with his sister Nellie, 10 years his senior, for nearly 40 years...

...Despite that heavy workload, Cardozo is legendary for his craftsmanship...

...He had a phenomenal memory, and his mind was full of echoes of the Bible, of Schopenhauer, Santayana, Alfred North Whitehead, Homer, Shakespeare, Dante, Milton, Addison and Steele, and countless others...

...Speaking more particularly about Judaism a few years earlier in an address honoring the rabbi of Shearith Israel, Cardozo recalled Pascal's belief in God: "Pascal's outlook on life was essentially Hebraic...

...There is an endless 'becoming.' We are back with Heraclitus...

...Kaufman, a professor at Harvard Law School, has given us a "life and works" biography...

...He also quoted the prophet Micah saying the Lord requires only that we do justice, love mercy and walk humbly with God...

...He made conduct, in [Matthew] Arnold's phrase, four-fifths of life...

...As the junior justice he was assigned to write relatively few important opinions by Chief Justice Charles Evans Hughes—but they further confirmed his reputation, even if they did not augment it...

...I suspect that Cardozo, if pressed, would have smilingly shared this identification...

...All is fluid and changeable...

...Under the law at the time, the manufacturer owed a duty only to the dealer, the immediate purchaser...

...While MacPherson was in the car, it suddenly collapsed because one of the wheels, made by another manufacturer, was constructed of defective wood...

...In part, I think, this can be attributed to the fact that Cardozo, again like Holmes, was a voracious reader...

...Some of Cardozo's judicial phraseology has become firmly fixed in the corpus juris...

...Influenced by Justice Brandeis, Rabbi Stephen Wise and Judge Julian Mack, Cardozo joined the Zionist Organization of America...