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1-1988

Benjamin N. Cardozo: Sixty Years After His Appointment as New York's Chief Judge

Jay C. Carlisle Elisabeth Haub School of Law at Pace University

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Recommended Citation Jay C. Carlisle, Benjamin N. Cardozo: Sixty Years After His Appointment as New York's Chief Judge, 60 N.Y. St. B.J., Jan. 1988 at 36, http://digitalcommons.pace.edu/lawfaculty/620/.

This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. ---...----- ...------_---JAY CARLISLE* JANESSA C. NISLEY** White Plains

Benjamin N. Cardozo: Sixty Years After His Appointment as New York's Chief Judge

iX. ty years after his appoint­ . ment as Chief Judge of the SNew York State Court of Ap- peals, Benjamin N. Cardozos' place in history as one of the country's most outstanding jurists and preeminent legal philosophers is secure. He is· widely acclaimed for being a successful practitioner, a brilliant legal scholar and a man who is ranked among the preemi­ nent American judges, along with Marshall, Kent, Story and Holmes.1 He was a giant of his era who, while spending all but six years of his pro­ fessionallife in New York, exerted a powerful national influence upon his own times. He was praised not

* Professor Carlisle teaches New York Prac­ tice and Civil Procedure at the Pace Universi­ ty School of Law. He is Chairperson of the Committee on Professional Ethics of the Westchester County Bar Association. The author acknowledges the research assistance of Ad~le Janow and Jeffrey Presanp. ** Attorney-in-Charge, Appeals and Special Litigation, Department of Housing, Preserva­ tion and Development of the City of New York. 1 Choper, The Supreme Court and its Justices, 104 (1987).

36 NEW YORK STATE BAR JOURNAL January 1988 HeinOnline -- 60 N.Y. St. B.J. 36 1988 only for his knowledge of the law, justice and in 1913, Cardozo was but for his ability to convey his elected to the same position as a ideas in literate and lucid prose and reform candidate. Six months later, for his dedication in applying them he was appointed as an associate to each case no matter how mun­ judge of the Court of Appeals by dane. He was respected for his Governor Glynn. Governor Whit­ gentleness, his kindness, his more redesignated him to serve as helpfulness and his consideration associate judge on January IS, 1917 for others.2 Such is Cardozo's and he was elected in November heritage that his analyses are still 1917 for a fourteen year term. On valued and his opinions and January I, 1927 he was sworn in as writings are still frequently quoted Chief Judge of the New York Court by judges and law review authors.3 of Appeals, a position he held until While Cardozo was an Associate his appointment to the U.S. Justice of the U.S. Supreme Court Supreme Court in 1932. from 1932 until his death in 1938, it During his tenure on the Court was during his tenure on the New of Appeals, Cardozo gained na­ York State Court of Appeals that he tional recognition for his opinions in was most productive and happy. As many cases, including MacPherson Associate Judge of the Court of Ap­ v. Buick Motor Company.6 chance to go on the New York peals from 1914 to 1926 and as Chief Schuylkill Fuel Corp. v. Nieberg Court of Appeals, by all means do "10 Judge from 1927 to 1932, he wrote Realty Corp. 7 and Palsgraf v. Long so. Each of his opinions his most significant opinions and Island Railroad. 8 Also he was na­ represented the best possible deci­ developed his judicial philosophy tionally recognized for his theories sion he could reach. The anguish on a bench that was regarded as the on the judicial process which were that preceded these opinions promp­ preeminent appellate court in the presented in a series of lectures at ted Learned Hand to observe "again country. Indeed, many commen­ the Yale Law School in 1921 and and again, iike Jacob, he had to tators have concluded that the Car­ published as The Nature of Judicial wrestle with the angel all through dozo Court contributed more than Process. He elaborated his ideas in a the night, and he wrote his opinions its contemporary Supreme Court to second series in 1923, entitled The with his very blood."ll the development of American Com­ Growth of the Law. In 1928 at Col­ Continued on Page 66 mon law. 4 His years on the Court of umbia, he presented a further series, Appeals were also enormously satis­ Paradoxes of Legal Science. His fying to him personally, because of theories were derived from his own 2 Hellman, Benjamin N. Cardozo -A~erican Judge (New York: Whittesey the collegiality of the bench and the analysis of the judicial process. He House, 1940) at p. 63. close friendships he formed in evaluated the principles underlying 3 For example, MacPherson v. Buick Motor Albany.s past decisions with precedential Company, 217 NY 382 (1916) has been cited Benjamin N. Cardozo was born value, discussing them in their social thousands of times and was a principal case discussed in more than twenty-six law in New York, on May 24, 1870. He and historical milieu and determin­ reviews, including those of Columbia, Cor­ was admitted to Columbia Universi­ ing whether prior rules should be nell, Harvard, NYU, Stanford, Chicago and ty at the age of fifteen and Virginia Law Review. Similarly, Palsgraf v. altered in light of contemporary Long Island Railroad, 248 N.Y. 339 (1928) graduated with honors in 1889. He values. He did not focus on an has been discussed in more than twenty-two was admitted to the New York Bar ideology, but a means or process by law review articles, including those of Ford­ in 1891 and practiced in a New York which legal principles could be ham, Hofstra, New York, St. Johns and Syracuse Law Reviews. City law firm with his brother for adopted to evolving public policy so 4 Address by Hon. Robert H. Jackson twenty-two years. He speCialized in as to produce a just result in a given before the Association of the Bar of the City corporate and commercial law. case. His ideas, Which were of New York, December 12, 1944, on the oc­ Despite his reserved manner, he was casion of the Fourth Annual Benjamin N. presented in lucid prose is at once Cardozo Lecture reprinted at 45 Columbia a successful trial lawyer who persuasive and pleasurable to read, Law Review I, (1945). presented 75 cases before the New lent authority to his judicial opi­ s Note 2, supra at 145.

York Court of Appeals and nions. 6 217 N.Y. 382 (1916). authored a technical manual in 1904 Cardozo described the Court of 7 250 N.Y. 304 (1929). on The Jurisdiction of The Court of Appeals as "a great common law 8 248 N.Y. 339 (1928).

Appeals of The State of New York. court [whose] problems are lawyer's 9 Jackson, supra note 4 at l. His father, Albert Jacob Cardozo, problems"9 and he once advised 10 Id. had been a State Supreme Court Robert H. Jackson "If you have a n Note I, supra at p. 109.

NEW YORK STATE BAR JOURNAL]anuary1988 37 HeinOnline -- 60 N.Y. St. B.J. 37 1988 Benjamin N. Cardozo: Sixty Years and grace of utterance you have made His power of analysis, of clear and precise After His Appointment as New your power felt; with what evenness, statement, and ability to apply the York's Chief Judge courtesy and calmness you' have presided authorities to the point involved were delightful to listen to and frequently Continued from Page 37 over the sessions of the Court. Only your associates can know the tender relations removed the doubts under which his which have existed among us; the in­ associates labored after careful dustry with which you have examined study . . . I talk of Judge Cardozo's and considered every case that has come work as though this was the principal In January of 1932, Oliver before us; the diligence with which you thing which impresses us - not sol The Wendell Holmes, almost 91 years of have risen before it was yet dawn and man himself was greater than anything he age, resigned from the Supreme have burned the midnight lamp to satisfy did or produced. His gentleness, his kind­ yourself that no cause was being ness, his helpfulness, his consideration for Court. Chief Judge Cardozo was neglected ... You were appointed (to the feelings of others [and] the modera­ considered. a likely successor to the the Supreme Court) neither for political tion of his language made him at an times great Holmes and Senator Robert nor geographical considerations, but in and under all circumstances the Wagner urged President Hoover to defiance of them and because the whole gentlemen, and endeared him to all his 17 appoint him to fill the vacancy. county demanded the one man who could associates. ' Hoover was reluctant to do so best carryon the great Holmes tradition of philosophic approach to modern Chief Judge Cardozo remains a because there were already two New American jurisprudence. Our loss is the role model for today's bar and Yorkers, Chief Justice Charles Evans gain of the high court to which you judiciary. A Cardozo award is an­ Hughes and Associate Justice go . . . We shan miss not only the great nually presented by the Jewish Harlan Fiske Stone, on the Court. Chief Judge whose wisdom and Lawyers Guild to a distinguished Another important consideration understanding have added glory to the judicial office but also the true man who New York lawyer, the Association was the fact that there was already has blessed us with the light of his friend­ of the Bar of the City of New York one Jewish member of the Court, 13 ship, the sunshine of his smile. presents an annual Benjamin N. Associate Justice Louis D. Brandeis. Cardozo lecture and Yeshiva Other choices were available to Cardozo served six years on the University has named its law school President Hoover, but at a crucial U.S. Supreme Court. Among his in his honor. His exemplary conduct moment in the selection process, many notable opinions was Helver­ serves as a frequent reminder that Justice Stone offered to resign so ing v. Davis,14 and other social the law is a noble profession. On that the nation would have the security cases upholding the con­ this, the sixtieth anniversary of Ben­ benefit of a jurist of Cardozo's stitutionality of the' federal Social jamin N. Cardozo's appointment as stature. Reports of Stone's gesture Security program. However, what Chief Judge of the New York Court reached the press with dramatic ef­ pleased him the most was being of Appeals, it is appropriate that we fect. President Hoover yielded and referred to as a worthy successor to rejoice for being blessed by the Cardozo accepted the appointment. Holmes. With characteristic modes­ legacy of this wonderful human be­ His nomination was sent to the ty, he stated, "I am not in his class at ing and eminent jurist. Senate on February 15, 1932 and all, but even so, it gives me a thrill was greeted with great enthusiasm. of pride to be spoken of as a fit suc­ Nonetheless, Cardozo was reluctant cessor to him. "15 Once in to leave Albany. He confided in Washington, D.C. Cardozo fre­ 12 Note 2, supra at 207. Governor Herbert Lehman that "I quently expressed a desire to return 13 Address by Hon. Cuthbert W. Pound in hate the thought of leaving here to New York and wrote "Washing­ honor of Chief Judge Benjamin N. Cardozo, reprinted at 258 N.Y. 1 (1932). where I have made so many ton is my legal domicile now, but 14 301 U.S. 619 (1937). friends . . . but [I don't] see any not the domicile of my spirit."lb In 15 Note 2, supra at 237. way in which I could refuse the ap­ early 1938, Cardozo had a stroke. 16 Id. at 275. pointment cif the President of the He convalesed in the Port Chester, 17 Id. at 63. United States."i2 New York home of his close friend, Cardozo's last day as Chief Court of Appeals Judge and Mrs. Ir­ Judge of the Court of Appeals was ving Lehman. It was there that he em March 3, 1932. Prior to hearing passed away on July 9, 1938, at the the first case, Judge Cuthbert W. age of 68. Pound, who was subsequently ap­ On October 1, 1938, the Court pointed chief judge by Governor of Appeals convened for its first ses­ Franklin D. Roosevelt, praised Car­ sion since the death of Cardozo. dozo: Judge Frederick Crane paid tribute to his former chief and remarked: The bar knows what earnestness of con­ ______I~I sideration, fairness of grasp, and force

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