"The sordid controversies of litigants," Benjamin Cardozo once said, are "the stuff from which great and shining truths will ultimately be shaped." As one of America's most influential judges, first on New York State's Court of Appeals and then on the United States Supreme Court, Cardozo (1870-1938) oversaw this transformation daily. How he arrived at his rulings, with their far-reaching consequences, becomes clear in this book, the first to explore the connections between Benjamin Cardozo's life and his jurisprudence. An intensely private man whose friends destroyed much of his correspondence, Cardozo has long eluded scrutiny. But through extraordinary effort Richard Polenberg has uncovered letters, briefs, transcripts, and biographical details to give us a complex living picture of this man whose judicial opinions continue to affect us. Polenberg describes the shaping experiences of Cardozo's youth, among them the death of his mother when he was nine years old; religious training in the Spanish-Portuguese Synagogue; two years of private tutoring by Horatio Alger, Jr.; and his reaction to the scandal that prompted his father to resign from the New York Supreme Court. Then, in light of certain cases that were brought before the Court of Appeals, we see how Cardozo's rulings reflected a system of beliefs rooted in these early experiences; how, despite his famous detachment, Cardozo read evidence and precedents selectively and based his decisions regarding issues from rape and divorce to the insanity plea on his own views about morality, scholarship, and sexuality. Here too is the truth behind Cardozo's renowned liberalism, explored through his rulings on New Deal measures such as the Social Security Act and his more conservative decisions in cases involving conscientious objectors and the rights of criminal defendants. The Benjamin Cardozo who emerges from these pages, a complicated and intriguing figure, points to a new understanding of the shaping of American law.

Richard Polenberg is Goldwin Smith Professor of American History at Cornell University.

Preface	p. xi
Acknowledgments	p. xiii
Prologue: A Man of Fastidious Reticence	p. 1
Such a Delicate Youth	p. 6
The Insanity Defense	p. 44
Scholars and Universities	p. 82
Gender and Sexuality	p. 120
Religion and the State	p. 157
Law and Order	p. 194
Epilogue: A Contested Legacy	p. 234
Notes	p. 251
Manuscript Sources	p. 273
Selected Bibliography	p. 275
Index	p. 280
Table of Contents provided by Syndetics. All Rights Reserved.

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CHAPTER ONE

PROLOGUE

A Man of Fastidious Reticence

On February 15, 1932, President Herbert Hoover nominated Benjamin Nathan Cardozo to fill the Supreme Court vacancy created a month earlier by the resignation of Oliver Wendell Holmes Jr. Prominent lawyers, judges, and politicians of both parties applauded the choice. By virtue of his attainments, outlook, and professional stature, the sixty-one-year-old Cardozo was commonly regarded as the most suitable successor to the venerable Holmes. Hailed as "a profound scholar, a lucid and courageous thinker and a saintly character, the newly designated associate justice quickly won unanimous Senate confirmation.

Newspaper reports at the time provided little biographical information about Cardozo. Born in New York City in May 1870 and raised by parents who were devout Jews, members of the Spanish-Portuguese Synagogue, he had been privately tutored by Horatio Alger Jr., the author of popular books for young readers. Cardozo attended Columbia College, compiling a brilliant undergraduate record and graduating at the age of nineteen. He then studied law at Columbia for two years and was admitted to the bar in 1891. In 1913, following a successful career as a lawyer, he was elected to the New York State Supreme Court. But in February 1914, barely a month after he was seated, the governor offered him an interim appointment to the Court of Appeals, the state's highest court. Elected in his own right in November 1917, Cardozo became Chief Judge in 1926, the position he held when designated by Hoover for the United States Supreme Court.

His writings, lectures, and professional activities had brought Cardozo considerable renown. In his most influential work, The Nature of the Judicial Process (1921), he posed the intriguing question: "What is it that I do when I decide a case?" His answer struck many in the legal profession as "an electric flash from the high heavens, clearing away the murk." Cardozo was also the author of The Growth of the Law (1924), The Paradoxes of Legal Science (1928), and a collection of essays and addresses, Law and Literature (1931). He was a founder and vice president of the American Law Institute, an organization dedicated to codifying legal principles. He served on the Board of Governors of the American Friends of Hebrew University in Palestine and, since 1929, had sat on the board of the American Jewish Committee. The recipient of honorary degrees from many universities, including Columbia, Yale, and Harvard, he had declined other distinctions, including, for example, an invitation to represent the United States on the Permanent Court of Arbitration at The Hague.

Cardozo had handed down pathbreaking decisions which demonstrated the law's adaptability to modern needs. That was the underlying message of MacPherson v. Buick Motor Company (1916), the ruling cited most frequently at the time of his elevation to the high court. Writing for the Court of Appeals, Cardozo held that automobile manufacturers' responsibility for the safety of their product extended not only to the dealers to whom, technically speaking, they sold the cars but also to the customers who eventually bought them from the dealers. The opinion rejected "precedents drawn from the days of travel by stage-coach" and insisted that legal principles should harmonize with "the needs of life in a developing civilization."

To friends and relatives, Cardozo expressed some misgivings about moving to the Supreme Court, but none serious enough to give him any real pause. "I find that I am rapidly developing into a myth. If I were not a Jew, I should expect to be transformed pretty soon into a Greek God," he told one acquaintance.' To another, he wrote: "Of course I like the applause, but it has been so dreadfully overdone that I can hardly look the knowing ones in the face ... Such a fuss and bother, and see the ordinary creature who stirred it all up! ... It is going to be a fearful wrench for me to pull up stakes. The excitement dulls my sense of it for the moment." When his friend Judge Learned Hand warned that the Supreme Court was so bitterly divided as to resemble "a hell of a bear garden," Cardozo replied confidently, "It takes two to make a fight."

Photographs of Cardozo usually showed him in formal poses, clothed in dark robes, sitting before shelves of leather-bound legal tomes. He was variously described as a "small thin man, with the pallor of a student and the eager eyes of a searcher for truth, under a shock of white hair," or "a picturesque figure, of Portuguese Jewish origin, with a thin face, lofty forehead, big-bridged nose, blue eyes and unruly white hair." "Monkish in his habits," he worked from early in the morning until late at night. He resided in an "old-fashioned mansion" on West 75th Street in New York City, but stayed at the Ten Eyck, on Albany hotel, while court was in session. He had few diversions, avoided exercise except for short walks, and took delight in his books. "He reads Greek and Latin for pleasure," noted one account. Cardozo was unmarried, another stated, adding: "The bachelor judge has led an almost hermitlike existence." To a reporter who interviewed him, Cardozo said, "There is not anything very interesting about me."

In truth, most of what was interesting about him went unreported, either because the personal details were not known or because the press tacitly agreed not to print them in deference to Cardozo's sensibilities. Throughout his career Cardozo had politely but finely discouraged aspiring biographers. After his appointment to the Supreme Court, when accounts of his life and work appeared more frequently, he was invariably displeased no matter how complimentary they were. In 1935 he tried unsuccessfully to persuade a publisher to suppress a book that discussed (in a highly flattering way, it may be added) the opinions he had written. He privately denounced the book as a "crime against good taste." In 1937, discovering that some of his undergraduate lecture notes had mistakenly been included with books he wished to donate to the Spanish-Portuguese Synagogue, Cardozo urgency asked the rabbi to return the material, which he considered "so intimate and personal."

"He never quite wanted anybody to penetrate into his inner life," Hand recalled. Irving Lehman, Cardozo's closest friend and colleague on the Court of Appeals since 1923, phrased it somewhat differently. Shortly after Cardozo's death in July 1938 Lehman eulogized him as follows: "A man of fastidious reticence, he guarded jealously his personal privacy ... Always he selected the field to which he would admit even his chosen friends, when he would disclose to them his thoughts and feelings; always he would reserve for himself fields from which he would gently exclude even his friends. He would be distressed if what he reserved for a friend were exhibited to the world."

For the test few months of Cardozo's life, Lehman managed most of his affairs. In April 1938 the justice, who had suffered a heart attack and stroke in Washington some months before, was brought to Lehman's home in Port Chester, New York, to recuperate. Lehman supervised Cardozo's medical arrangements and kept members of the Supreme Court informed as to his condition. It was at Lehman's home, eventually, that the funeral service was held. In his will, Cardozo left his residuary estate to Columbia University, but he expressly bequeathed to Lehman "any books in my library that he may care to own." Lehman and Cardozo's executor construed this language to include all letters and personal papers.

In August 1938, when Cardozo's first biographer, George S. Hellman, requested access to the correspondence, Lehman turned him down: "I feel strongly that no account of Ben's personal life should be written and published and I am sure that he would feel the same way." In September Hellman tried again to elicit Lehman's cooperation, promising "to consult you and to be advised by you in many respects," only to be rebuffed again. Lehman conceded that Hellman, a friend of his as well as the justice's, would undoubtedly treat his subject "with affectionate reverence," but he reiterated the theme of his eulogy: Cardozo "chose what he wished to disclose to his friends and what he wished to hold in the solitude of his own self. I cannot change my opinion that neither what he disclosed to his chosen friends nor what he held back from them should be published for all to read." Hellman made a final attempt in April 1939, indicating this time that Lehman's wife, Sissie, had "candidly told me that she felt more strongly than you did against such a biography," but was again refused.

Turning next to Columbia University, the residuary legatee, Hellman learned to his horror that, in the interim, Lehman had destroyed Cardozo's correspondence. In October 1939 a university official explained that "Judge Lehman indicates that Judge Cardozo felt the personal letters should be destroyed"; only such material as related to public matters would be deposited at Columbia. Responding to another inquiry about the papers, the provost reported that Lehman had told Columbia president Nicholas Murray Butler "that he is so clear as to Judge Cardozo's attitude on the matter of private correspondence that they would not suggest the release of anything of a private nature. We have not been able to make the point, apparently, that the papers and letters are a part of the residuary estate and might, therefore, appropriately come to the University."

So his desire to protect his friend's privacy--not to mention his reputation, memory, and posthumous fame--had led Lehman to set fire to Cardozo's personal letters. This calculated act of destruction naturally excited the indignation of scholars who later learned of it. The reaction, many years afterward, of the Columbia law professor Harry Willmer Jones was typical. A librarian at the Supreme Court had left Jones that Cardozo's last clerk, Joseph Rauh, "says that the papers were left to the late Judge Lehman and he believed that they were destroyed by the Judge because they were so exceedingly personal in nature. This coincides with a notation in the MS Division of the Library of Congress, which says `The main group of papers were destroyed by Judge Lehman' ... it is clear enough that the papers left to Columbia were burned by that vigilant censor, Irving Lehman." The whole matter, Jones said, "was `handled' all right--the way Warwick handled Jeanne d'Arc."

Among the letters consigned to the flames were chose Cardozo had written to his older sister, Ellen Ida ("Nell"). Cardozo had lived with Nell and had cared for her during many long years of invalidism until her death in 1929. One friend, who had seen some of the letters, described them as "very, very intimate and personal." But Lehman's attempt to erase the written record did not fully succeed. The letters Cardozo wrote to friends and other relatives were, fortunately, beyond Lehman's reach. A substantial portion of Cardozo's correspondence has survived, as have the reports he drafted for the internal use of the Court of Appeals. Taken together, they allow a portrait of the man, however incomplete, to emerge.

The portrait can be enhanced by examination of some of his rulings. In eighteen years on the Court of Appeals, Cardozo wrote more than 500 opinions; and in six years on the Supreme Court, more than 170. Many of them dealt with technical, even arcane, aspects of the law. But certain cases raised crucially significant questions, and in answering them Cardozo revealed his innermost sentiments on subjects ranging from sexuality to religion, from insanity to criminality. Once, describing his indirect manner of expressing himself, Cardozo alluded to his use of "the veiled phrase and the uncertain line." Drawing the veil and removing some of the uncertainties should help us to understand the man, the judge, and the legal world in which he dwelt.