Cardozo, Benjamin

Benjamin Nathan Cardozo was born on May 24, 1870, in New York City. He was the child of a well-established Sephardic Jewish family. His father, Albert Jacob Cardozo ( 1828–1885 ), had been a trial-court judge in New York but had been forced to resign in 1872 as a result of a Tammany Hall corruption scandal. The Cardozos were wealthy—in 1880, for example, they had six live-in servants—which enabled them to have Benjamin privately tutored. He later attended Columbia College and the Columbia University School of Law. Something of a prodigy, his studies were completed in June 1891 when he was only twenty-one.

Benjamin Cardozo, associate justice of the US Supreme Court, 1932–1938.

Benjamin Cardozo, associate justice of the US Supreme Court, 1932–1938.

On graduation from Columbia, Cardozo joined his older brother in the family law firm. He quickly established a reputation as a legal technician, particularly skilled at appellate argument and at preparing appellate briefs. Most of the firm's caseload involved questions of business law. Cardozo argued nearly all of their tort and contract-law cases and nearly always won.


Cardozo's career as a legal practitioner came to end in 1913. He had been nominated for a seat on the New York State Supreme Court (in New York, the “Supreme” Court is the trial level court, the equivalent of the Superior Court of many states). He won the election narrowly, and was sworn in on January 5, 1914. Five weeks later, the governor of New York nominated him to a seat on the highest court in New York State, the Court of Appeals. His tenure on the Court of Appeals was confirmed by election in 1917. In 1925, he was elected chief judge of the Court of Appeals.

Few state appellate court judges become widely known. Cardozo did, in part through his literate and persuasive opinions, which became precedent and were later followed by many other state appellate courts around the country. His decisions were in the tradition of legal realism. Legal realism, a school of legal philosophy, denied that law could be an internally and logically consistent science—economic and social reality must be part of legal analysis. Cardozo agreed fully with the famous aphorism from The Common Law ( 1881 ) by Oliver Wendell Holmes Jr. that “The life of the law has not been logic; it has been experience” (Lecture 1).

Cardozo's innovative approach to tort and contract law embodied this principle. For example, in MacPherson v. Buick Motor Company, 111 N.E. 1050 ( 1916 ), he established the principle that product manufacturers can be held liable for injury to consumers, even though the actual sale of the product was through a third party. This ruling laid the enduring basis for American product liability law. Abandoning the older common law of privity, which shielded manufacturers, the ruling rests on Cardozo's understanding of the growing impact of industrialization on the public.


1874–1964 ) came under intense pressure to appoint Cardozo. The nomination came in March of 1932 and was approved unanimously by the US Senate.

Cardozo's service on the Supreme Court was cut short by illness. He participated in a number of momentous cases, usually voting with the liberal justices. His two most important opinions came in Helvering v. Davis (the Social Security Cases), 301 U.S. 619 ( 1937 ), and Palko v. Connecticut, 302 U.S. 319 ( 1937 ).

Social Security Cases. In the Social Security Cases, Cardozo upheld the New Deal social security program. This case involved the constitutionality of conditional grants to state governments under the spending power of Article I of the US Constitution. Earlier court decisions seemed to have held such spending to be beyond the power of the federal government. The precedent set in Cardozo's opinion marked one of the major turning points in the development of federal social and economic programs, not only to meet the immediate emergency of the Great Depression, but later to authorize a host of additional federal programs designed to promote the general welfare.

Palko v. Connecticut. In Palko, Cardozo laid down a sensible constitutional test for determining which rights bind state governments under the Fourteenth Amendment's due process clause. That clause says “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Up until 1937, there seemed to be little consistency in the Court's view of what was and what was not “due process.” Cardozo discerned a pattern and devised a test: If the right in question is “of the very essence of a scheme of ordered liberty” (302 U.S. at 325), it limits the states. Although the specific holding in Palko was later overruled, Cardozo's test remains in use. It is less debated in the twenty-first century because by then nearly all of the Bill of Rights, including the Second Amendment, had been held to be protected against state encroachment.

Cardozo suffered a stroke in February 1938 and died on July 9. His career on the Court had lasted for only five and a half years. Although he made important contributions to constitutional law, there would undoubtedly have been far more had he lived.

SEE ALSO Common Law ; Incorporation of the Bill of Rights ; New Deal Constitutional Revolution ; State Court Judges, Twentieth Century ; Supreme Court of the United States .


Cardozo, Benjamin N. (1921.) The Nature of the Judicial Process. New York: Dover, 2012.

Hellman, George S. Benjamin N. Cardozo: American Judge. New York: McGraw-Hill, 1940.

Holmes, Oliver Wendell, Jr. (1881.) The Common Law. New York: Dover, 2013.

Kaufman, Andrew L. Cardozo. Cambridge, MA: Harvard University Press, 1998.

Polenberg, Richard. The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, MA: Harvard University Press, 1997.

Posner, Richard A. Cardozo: A Study in Reputation. Chicago: University of Chicago Press, 1990.

Robert Jacobs
Central Washington University