Considered a paragon of moral insight on the American bench and renowned for his extraordinary erudition, commitment to social justice, wisdom, personal dignity and powerful oratorical skills, Benjamin Nathan Cardozo (1870-1938) is consistently ranked as one of the foremost jurists in American jurisprudence
An outstanding judicial stylist, he is still recognized as the great interpreter of the common law, and the brilliance of his reasoning is still cited. Blending legal rule with social need, he was a tireless advocate of the rights of consumers and the responsibilities of corporations. After serving with distinction on the New York Court of Appeals from 1914 to 1932, where he earned a national reputation, he was elevated by President Herbert Hoover to become the second Jewish justice (after Brandeis) on the Supreme Court, where he served from 1932 until his death in 1938. On the Court, he established the general foundation for a broad interpretation of federal powers, clarified the due process clause of the Fourteenth Amendment, and reasserted the division of authority between state and federal government.
In developing his judicial philosophy, Cardozo drew on a Talmudic teaching that describes G-d (k’veyachol) offering a prayer to Himself: “May it be my will that my justice be ruled by my mercy,” a prayer that he urged judges to keep in mind in rendering their own decisions. He manifested great sensitivity to the underclass and the unfortunate and, joining a strong liberal block of justices on the Court during an era marked by political progressivism, he criticized “the demon of formalism” and became known as the father of “legal pragmatism.” (Others would view him as engaging in unconstitutional judicial legislating and usurpation of the legislative prerogative). Pursuant to this doctrine, the common law is not a set of static, unbending rules but is rather a process that needed to be changed to reflect evolving societal needs, and that a judge’s rulings in interpreting written law should not be based exclusively on the law itself but must also consider the consequences of such a ruling.
Cardozo’s forebears, descended from Jews who were forced to convert to Christianity but still secretly practiced Judaism, left Portugal during the Inquisition for Holland, where they again became practicing Jews. Before the American Revolution, his ancestors emigrated from London to the British colonies in America, and several of his family members served proudly in our War of Independence. His parents, Rebecca Washington (née Nathan) and Albert Jacob Cardozo, and all four of his grandparents, were Western Sephardim of the Portuguese-Jewish community affiliated with Manhattan’s Congregation Shearith Israel, the Spanish and Portuguese Synagogue of New York. Founded in 1654, the shul remains the oldest congregation in North America.
Cardozo was named for an uncle, Benjamin Nathan, a vice president of the New York Stock Exchange whose 1870 murder, sensationalized by the New York media, was never solved. A member of his family served as the first Jewish incorporator and trustee of Columbia University; a cousin was a founder of Barnard College; a close relative was the incorporator/secretary of the Jews’ Hospital (now Mt. Sinai); yet another helped found the New York Stock Exchange in 1792; and renowned poet Emma Lazarus was a cousin. In a great public shonda (shame, disgrace), his father Albert, a Tammany Hall judicial appointee who also served as vice president and trustee of Shearith Israel, was implicated in a judicial corruption nepotism scandal that forced his resignation from the Supreme Court of New York (1868). Notwithstanding this great familial stain of dishonor, Cardozo attended Columbia University Law School and, upon his graduation, defiantly chose to assume his first legal position at his father’s law firm, where he quickly distinguished himself as a “lawyer’s lawyer” and developed a reputation of utmost integrity.
Raised as an Orthodox Jew, Cardozo celebrated his bar mitzvah at Shearith Israel, and although he ceased attending religious services shortly thereafter, he maintained the family pew at the synagogue throughout his life. Although he ceased religious practice and characterized himself as an agnostic, he always held himself out as a proud Jew and he remained a Jewish traditionalist in many respects – for example, he refused to permit pork and shellfish in his home, and he played a leading role in the successful opposition to a planned elimination of separate seating in Shearith Israel in 1895. (The congregation had become majority Ashkenazi by the beginning of the nineteenth century, but the synagogue retained its Sephardic tradition and rituals and, as the result of Cardozo’s efforts, its Sephardic Orthodox traditions remained unchanged.)
Cardozo’s view of his Judaism may be seen through comments he made during public addresses. In one such commencement address that he delivered later in his life at the Jewish Institute of Religion in 1931, he acknowledged that he could not admit to sharing the religious beliefs of the graduates or deny that “the devastating years have not obliterated youthful faiths.” In a 1936 correspondence to a friend a few years before his death, he wrote that “I think a good deal these days about religion, wondering what it is and whether I have any. As the human relationships which make life what it is for us begin to break up, we search more and more for others that transcend them.”
But his view of his own Judaism may perhaps best be reflected in an 1898 talk he delivered at Shearith Israel about the late Benjamin Disraeli, the British prime minister who, like Cardozo, had been born into the Spanish-Portuguese Jewish community. Cardozo noted that although Disraeli had been baptized and was formally Christian, he had risen to high office in the face of vehement, pernicious, and unrelenting antisemitism and always remained firm in his pride for his Jewishness; indeed, he frequently flaunted it.
Tellingly, and surely not without some degree of introspection and reflection on his internal conflict, Cardozo added, “So we find it to the last – the same union of loyalty to the race and disloyalty to the faith, the same impossible effort to reconcile the irreconcilable and to treat the religious tenets of his manhood as a development of the religion in whose shelter he had been born.”
Using words that could surely have been applied to himself by millions of supporters, he said of Disraeli:
By his own personality, as well as by his words and deeds, he seemed to weave into the woof of English public life some portion of the Hebraic spirit; to Hebraize the mind of the Protestant and the Puritan; and even to revive in his own day some glimmer of those ancient glories which it was one of the functions of his life to illustrate to the world.
While Cardozo accepted membership in the Century Club, an elite and exclusive Washington club that discriminated against Jews – for which he was criticized by Felix Frankfurter, his later successor on the Supreme Court, and others – he also proudly joined the Judean Club. He joined the General Committee of the American Jewish Committee (AJC), whose purpose was to secure civil and religious rights for Jews worldwide, and he sat on its Executive Committee from 1937 until his appointment to the Supreme Court in 1932; he was a member of the American Friends of Hebrew University; and he served on the executive committee of the Jewish Welfare Board.
Cardozo’s Judaism was essentially a reflection of his commitment to social justice, and he generally defined religion as what has been more contemporarily become known as tikkun olam. As he said at a dinner honoring Zionist leader Rabbi Stephen Wise:
Religion is worthless if it is not translated into conduct. Creeds are snares and hypocrisies if they are not adapted to the needs of life . . . Has there been some social wrong, some oppression of the people, some grinding of the poor? That is a matter for religion. Has there been cruelty to Jews abroad or to colored men at home? . . . That is a matter for religion. Has the sacred name of liberty, which should stand for equal opportunity for all, been made a pretext and a cover for special privileges for a few? That is a matter for religion.
Accordingly, some commentators, with some basis, submit that Cardozo was wholly comfortable as an assimilated Jew who could achieve his goals, in the law and otherwise, in a gentile world, and that his involvement with Jewish causes was likely more attributable to his general sense of social justice and duty than to specific support for Jews and Jewish organizations. Even if so, however, his membership in, and support for, these Jewish associations generated significantly increased stature, attention, and support for Jewish interests.
Although no longer a practicing Jew, Cardozo retained his extensive knowledge of Jewish tradition, practices and history, which often manifested themselves in his speeches. In one address that he was to deliver at the newly dedicated School of Jurisprudence at the Hebrew University in Jerusalem (he was unable to make the trip, but the text of the speech has been preserved), he wrote of the ancient Hebrew law, specifically citing the moral principles contained in Torah and admonishing his audience not to overlook the role of the Talmud as a source of morality.
After his confirmation over strong opposition to the appointment of “another Jew” to the court (Brandeis had been the first), Cardozo sat on the Supreme Court with James Clark McReynolds, who had been appointed to the High Court by President Wilson in 1914, one of the most notoriously open antisemites holding high public office in all American history. McReynolds, who frequently expressed open hatred for both his Jewish colleagues, commented upon Cardozo’s nomination by noting that “to become a justice one only had to be a Jew and have a father who was a crook.” He refused to attend Cardozo’s swearing-in ceremony and any of the three memorial sessions held by the Supreme Court for Cardozo after his death; he made a point of covering his face whenever Cardozo read his opinions aloud in open court; and, even while concurring, he would never deign to write the words “I concur” in any opinion signed by Cardozo.
Very sensitive to antisemitism, Cardozo urged his Jewish law clerk to file suit after the clerk had signed a contract for the purchase of a home but was barred from closing on the transaction because of a restrictive covenant. In particular, he feared the antisemitism of Hoover’s Republican Party that he perceived as including “all the narrow-minded bigots, all the Jew haters, all those who would make of the United States an exclusively Protestant government.” In the 1928 presidential election, he was out front in backing Democrat Al Smith, even while being very sensitive to the fact that Catholics were notorious for persecuting Sephardic Jews, primarily because he feared that Smith’s defeat would be acclaimed as a great victory by antisemites and by “the friends of obscurantism.” Ironically, it was Republican President Hoover who appointed Democrat Cardozo to the Supreme Court four years later – by no means the last appointment by a Republican president that ultimately moved the court significantly leftward.
Raised in the Orthodox Sephardic heritage and knowledgeable of the history of persecution and hate against Jews in general, and the history of the forced conversions of his forebears on the Iberian Peninsula in particular, Cardozo manifested a keen sensitivity and empathy to the plight of minorities. As his close friend, Judge Irving Lehman, who served on the New York Court of Appeals memorialized him:
His ancestors were driven from the Spanish peninsula more than four hundred years ago because they would not abandon the faith of their fathers . . . The same spirit which impelled Justice Cardozo’s ancestors to hold fast to their faith and their principles, though it made them homeless outcasts, animated Justice Cardozo.
Yet, Cardozo would not side with the “religious” litigant just because a case presented a religious issue, and he was always supremely careful never to permit his Judaism to interfere with his judicial rulings. Most famously, although he was vociferous in his opposition to Hitler and the Third Reich, he was deeply concerned when Louis Brodsky, a Jewish New York City magistrate, dismissed assault charges against Jewish defendants who on July 27, 1935, had stormed the Bremen, a German ship in New York harbor flying the Nazi swastika on grounds that defendants were not guilty because they had been “provoked” by the Nazi flag.
Cardozo, aware that antisemites and much of the public seize on every opportunity to attribute the misdeeds of one Jew to all Jews, and concerned about allegations that this is only one example of Jews elevating “religious loyalties” over American patriotism, wrote:
What is the use of striving for standards of judicial propriety if [one] condone[s] such lapses! It would have been bad enough if [Brodsky] had been a Gentile; but for a Jew it was unforgivable. Now our traducers will say – and with some right… – that these are the standards of the [Jewish] race.
Because he had essentially become a secular Jew, it is unlikely that the idea of Eretz Yisrael being the land promised by the G-d of the Bible to the Jewish people stirred him; rather, it is more likely that his idea for a Jewish nation was motivated by his concern for masses of suffering people and the desire to help relieve the misfortunes of the oppressed. As such, he was not a strong Zionist but, at the end of the day, he came to support Zionism – albeit somewhat reluctantly – when he felt himself placed in a corner and forced to choose one way or another. Originally, he did not see how a Jewish home in Eretz Yisrael “would help me walking up Fifth Avenue in New York,” but he later not only became a member of the Zionist Organization of America but, arguing that Great Britain must fulfill its promises under the Balfour Declaration, he granted the ZOA permission to use his name and a letter of support for the organization. As he explained:
I have signed the [ZOA] application with some misgiving, for I have confessed . . . that I am not yet an enthusiast. But today, the line seems to be forming between those who are for the cause and those who are against it, with little room for a third camp. I am not willing to join those who are against, so I go over to the others.
When President Obama announced his nomination of Sonia Sotomayor, the self-proclaimed “wise Latina,” to the Supreme Court in 2009 to replace David Souter, the mainstream media virtually en masse proclaimed the nomination of the “first Hispanic Justice” to be on a historic par with President Johnson’s nomination of Thurgood Marshall to serve as the first Black justice. But given the extensive history of Cardozo’s ancestry, as discussed above, what possible argument is there to support the proposition that he was not Hispanic and, therefore, the first Hispanic Justice? In fact, years prior to Sotomayor’s nomination, two Hispanic-oriented websites did exactly that: it unambiguously characterized him as the first Hispanic Justice.
To appropriate a phrase made infamous by President Clinton, it all depends upon what the definition of “Hispanic” is.
First, some critics contend that Cardozo was not Hispanic because he apparently did not clearly self-identify as such. The problem with this argument is that the term “Hispanic” was not commonly used during Cardozo’s lifetime and would most likely been unknown to him. In fact, the word Hispanic was first dreamt up by federal bureaucrats for the 1980 U.S. Census – at the instigation of President Nixon, who saw a political advantage in doing so to increase Hispanic support – to classify the growing and diverse population of citizens with roots in Mexico, Cuba, Puerto Rico, and other Spanish-speaking places.
Second, critics contend that not only was Cardozo’s ancestry not from Spain, but it would make no difference if it were because the practical definition of Hispanic includes only people who are descended from countries in the Americas with a Spanish-language heritage – and Cardozo’s ancestors were not from Mexico, Central America, or the Spanish-speaking Caribbean, the three main immigrant sources feeding the largest minority in the United States.
However, the first definition of Hispanic in Webster’s Dictionary (1970) was “of or relating to the people, speech, or culture of Spain, Spain and Portugal, or Latin America” (although it must be noted that the Webster definition is now “of, relating to, or being a person of Latin American descent living in the U.S.; especially one of Cuban, Mexican, or Puerto Rican origin.”). Moreover, in a 1981 FCC case, the court ruled that a Sephardic heritage was generally sufficient to establish evidence of Hispanic status, but other factors also had to be considered in making that determination – and, as it is beyond dispute that Cardozo’s family and Benjamin himself maintained an unambiguous Sephardic identity, he must be considered Hispanic pursuant to this standard.
But there is more: any number of federal affirmative action programs specifically include people of Portuguese origin within their definitions of Hispanic. For example, the Small Business Administration definition of “Hispanic American” includes individuals with ancestry and culture rooted in the Iberian Peninsula, “including Spain and Portugal” and, in determining whether a business is a “Disadvantaged Business Enterprise” eligible for preferences in government contracts, the Department of Transportation includes “persons of Spanish or Portuguese culture or origin” as Hispanic. (However, it must be noted that the Census Bureau does not regard people of Portuguese descent as Hispanic – although, because it does not confirm respondents’ heritage, anyone can respond that he or she is Hispanic.)
And more: it is well recognized that, over the course of many centuries, Portuguese Jews – such as the Cardozo family, who were members of the Sephardic communities in Europe and North America – almost certainly married descendants of Spanish Sephardim and thus, even if Cardozo lacked Spanish origins, he had Spanish Jewish ancestors and was therefore of Spanish origin. In addition, the geographical boundaries of modern Spain and Portugal have changed through history, making it difficult to determine precisely whether the Cardozo family was from modern-day Spain or Portugal.
In the final analysis, the most obvious explanation for ignoring Cardozo in favor of Sotomayor as the first Hispanic justice is because Cardozo was Jewish, particularly given that the Spanish-speaking community, which is overwhelmingly Catholic, tends to confuse ethnic affiliation with the majoritarian faith.
After Cardozo’s death from a heart attack, a service was held at Shearith Israel, and he was buried in the synagogue’s cemetery in accordance with the Orthodox tradition next to his parents and siblings, for whose graves he provided for perpetual care. He gave an endowment to Mt. Sinai Hospital in the Bronx and bequeathed $25,000 (over half a million dollars in today’s dollars) to the Jewish Federation for the Support of Jewish Philanthropic Societies.