The shelf life of judicial reputation is short. How many judges from a hundred years ago can most lawyers recall, except perhaps as a name? My subject, Benjamin Cardozo, is the exception. The year 2013, when this essay went to press, marks a hundred years since Cardozo was first elected to the New York Supreme Court, the leading New York trial court, and seventy-five years since he died as a Justice of the United States Supreme Court. He is one of the very few judges of that era whose name currently means something to the legal profession and beyond. Unlike any other contemporary, he is still remembered for his career as a state court judge and also, albeit somewhat less, for his career on the United States Supreme Court. My thesis is that the public memory is somewhat askew as to the essence of what ought to be remembered in both venues.
First as to the memory of the Benjamin Cardozo of the New York Court of Appeals. Cardozo is remembered as the judge who brought the common law into the twentieth century, the judge who adapted the general principles underlying centuries of traditional law to the dynamic changes of an industrializing society, the judge who realized that the atomized societies of previous centuries were becoming more and more interdependent and that law needed to recognize the new economic and social reality. While a careful reading of the body of Cardozo's work supports that conclusion, it does not portray the whole Cardozo. There was another Cardozo, who gave more weight to, or put more burdens on, the other organs of government. A great many of his most famous opinions are matched by an opinion in an analogous case in which he did not modernize the law, did not create a new duty to reflect changes in society. Cardozo modernized most in situations where the way had been foreshadowed, or at least hinted at, in previous legislative or judicial action in his own state.
On the other hand, Cardozo believed that his position as a judge in a democratic society counseled leaving the responsibility for law reform to the legislature when issues were complex and the consequences of change uncertain. His references in many opinions to possible limits on the doctrine being enunciated were not window dressing to be ignored in subsequent opinions. Quite often the lawyerly ingenuity that expanded a principle enunciated a limitation to the principle as well. Thus the seminal opinion imposing liability on auto manufacturers to the ultimate buyer of its defective product is matched by an opinion refusing to impose liability on a public utility to the company whose property was destroyed by fire, allegedly because of failure of the water company to supply water at specific hydrants. Indeed, a series of cases in which Cardozo invoked doctrine and policy in support of liability based on foreseeability is matched by a series of cases in which he invoked doctrine and policy to deny foreseeability-based liability. One can find other series of such paired cases throughout the various areas of doctrine that he considered during his eighteen years on the New York Court of Appeals.
The same ambiguity can be seen in his writings, most notably in The Nature of the Judicial Process, (1) a series of lectures that continues to be reprinted and sold in substantial numbers over ninety years after they were delivered. Cardozo trumpeted the then-contested doctrine that judges make law. That was what his listeners and readers heard and read. But he also cautioned that judges were constrained by history, precedent, and the powers and responsibilities of other branches of government. His performance on the bench demonstrated that the cautions carried weight with him. Cardozo's judicial philosophy was shaped by his twenty-three years as a practicing lawyer. He was a tenacious, hard-headed practical lawyer who relied on the facts when they were favorable and on every legal technicality when they were not. His philosophy was a lawyer's eclectic philosophy; he generally avoided sweeping pronouncements that might embarrass the future. …