BOOKS JULY 17, 1935
Out of the recent planetary turmoil of the Supreme Court, those down below who have been counting on the liberal Justices have been denied even a handful of stardust. Mr. Justice Roberts cut short in the railroad pension case what had been all along a rather indecent one-sided flirtation. Justices Hughes and Stone have been giving the liberals a passing solace, but theirs was never a deeply rooted point of view, and their liberalism has waned with the decline of the prestige of the New Deal. As for Mr. Justice Brandeis, it is unfair to regard him as “a lost leader”: it has been evident for several years that he does not relish his traditional role as the Lucifer of the rebellious angels, especially when the cause to be fought for is as inglorious as the Roosevelt policies, with their overgrown administrative structure; his final defection, while it has spread dismay among many, should not have occasioned surprise.
The last white hope was Cardozo, too freshly come to the Court to have turned into a tired liberal. His dissenting opinions in the Liggett chain-store case and the Panama hot-oil case had shown that he took seriously the Holmes tradition of free interpretation. Finally, in the N.R.A. and farm-mortgage cases, he went over to the unanimous Court. But even as he faltered in the Schechter case, he preferred to write a separate concurring opinion, less dour and mechanical than the opinion ofthe Court. He was throwing a last regretful glance at the road not taken. He muffed a great chance for creative judicial statesmanship. But more than any other justice he has emerged from the fiery ordeal, as he emerges from the pages of Mr. Pollard’s book,1 a man of good will.
Mr. Justice Cardozo’s career, like that of Mr. Justice Brandeis, is one of the sheerest records of achievement in our history. Each step in it was cleanly won: from the bar to the State Supreme Court in 1914; after a few weeks, somersaulting the Appellate Division and, by the extraordinary request of a united Court, landing in the New York Court of Appeals; Chief Judge in 1926; the national bench in 1932. But unlike his colleague, who had carved out a public career as a fighting People’s Attorney before he came to the bench. Mr. Justice Cardozo’s entire life has been cloistered.
It is one of the ironies of legal philosophy that this pragmatic theorist of the law, who has written in praise of “life” and “experience,” should have lived his sixty-five years so completely removed from both, making the life of the mind the source as well as the focus of everything. None the less I wish the author had given us not only a “liberal mind in action” but a liberal mind in the making. Here is a bookish man: what were the books he learned from, and in which order? What influences in the climate of opinion shaped his thinking—social and philosophical as well as legal? What were the turning points in the growth ofhis mind? Instead of answering such questions,Mr. Pollard organizes his book around a topical groupingof Cardozo’s cases (personal injury, crime, constitutionalproblems, etc.) and gives a lucid account of each. I shouldhave preferred the other book, which has still to be written, but this one was worth doing and has been done with clarity.
If it suffers from anything, it is chiefly a strain of over-reverence and a persistent Mazdaism. One gets a feeling that in Mr. Justice Cardozo, American jurisprudence has finally fulfilled its destiny. And one gets also a feeling t hat American life has been the struggle of the forces of light (liberalism) against the forces of darkness (conservatism), and that whenever the liberals have won a decision it has been a good thing, and when they have lost it has been a dark day. But I can understand how easy it is to feel reverence for Mr. Justice Cardozo. With his selflessness, his asceticism, his austerity, he is a cross between a Gandhi and a Cato. He has an amazing combination of immense technical ability, philosophic breadth and distinction of style that has made him the delight of law teachers and the evening solace of lawyers who care about their craft. In fact, so great was his ability that he seemed doomed never to get to the Supreme Court. He was, moreover, a New Yorker, and with Hughes and Stone already on the bench, that was an added disadvantage. When in 1932, President Hoover under intense pressure from Borah, Wagner and others, reluctantly chose him to succeed Holmes, the choice seemed too good to be true. Professor Chaffee expressed a widespread opinion when he said that Hoover’s choice had “ignored geography and made history.” And Dean Pound, writing a foreword to this book, places Mr.Justice Cardozo (in a list that strangely omits Mr. Justice Brandeis) among; the ten greatest judges in American history.
But, Pantheon aside, what is Mr. Justice Cardozo’s orientation toward his task and what is his place in the historic process? To say that he is a liberal is to say something that is being increasingly stripped of whatever meaning it may once have had. While writings on the Supreme Court tend to the Gilbert and Sullivan view that every Justice is either a little Liberal or else a little Conservative, it is well to remember that Supreme Court liberalism is not all cut of one cloth. Mr. Justice Holmes was a philosophic liberal: in the midst of social tensions he could carry on the judicial process as if from Olympus. He had a sense that civilization survives all fighting faiths, and that none of them needs to be constitutionally suppressed; and accordingly he did not have to bother too much about economic theory or circumstance. Mr. Justice Brandeis is an economic liberal. His greatness has lain in the very fact that he has made a fighting faith of liberalism. But his economic theory, realistic as it is in its details, belongs in its preconceptions to an earlier stage of capitalism. It is a kind of economic primitivism, based on the idea of restraining business within small units and competitive limits. He is continually saying Hello to reform. And as the gap widens between his theory and the rigor of the machine process, it is safe to predict that he will fall back increasingly on his moral fervor and, while retaining his tremendous personal influence on his colleagues, will cease to be a vigorous creative figure in American law.
Can Mr. Justice Cardozo create a third type of liberalism? The record of his achievement on the New York Court of Appeals, as Mr. Pollard gives it, is impressive in its humanity and its fine grasp of legal realities; from his vantage ground on the most important state court, his influence on the doctrine of the other state courts has undoubtedly been immense. But nothing in his opinions reveals a clear economic orientation. His perspective is rather that of a finely tempered juristic philosopher who takes a broad view of the judicial process. He has a mind that combines to a hitherto unparalleled degree the generous and the scrupulous. He can balance the claims of social change against the desirabilities of social stability, the logical against the sociological, the merits of free interpretation against the rigors of constitutionalism. His is probably the most truly judicial mind on the Bench today. But by that very fact he seems disqualified from assuming the vigorous leadership that John Marshall had in his time, and Holmes and Brandeis have also had. For, like so-called objectivity in the academic sphere, a nice judicial balance may lead ultimately only to social quietism.
As chief judge of the New York Court of Appeals, Cardozo’s qualities fitted him admirably for leadership; he was so clearly beyond partisanship that every word of his carried weight; and he was dealing primarily with civil cases, where there is much to be said for the slow geological process of “the growth of the law.” But in dealing with constitutional law on a national scale, in a period of national crisis, a scrupulous judicial temper is not equivalent to a broad conception of statesmanship. Intelligent as he is, Mr. Justice Cardozo has missed the lesson of history everywhere: that the movement of economic forces will not wait for, or yield to, an overnice balancing of legalistic phrases.
It is the cruel irony of judicial liberalism that, despite the greatness of some of the work of Holmes and Brandeis, it should prove inadequate to deal with the problem of an expanding national power in the period of crisis. Mr. Justice Cardozo came to the Court heir to Holmes’s tradition of fine tolerance and Brandeis’ method of judging every case in the context of the social conditions that gave rise to it. He had the chance to inaugurate a new phase of the history of liberalism by applying his fine gifts to the task of the Court in what is probably its most crucial period since John Marshall. From following the stands that Mr. Justice Cardozo has taken in his three years on the Court, it seemed reasonable to believe that he could distinguish between the powers that will eventually have to be granted the national government through the commerce clause, and the arbitrary powers to be denied to the President as an undue delegation of legislative power by Congress.
Through this distinction a liberal jurisprudence could have proceeded on safe ground, and Mr. Justice Cardozo’s dissent in the Panama case held out hope that he would apply it. But his Schechter opinion, while intelligible on the score of delegated powers, turns its back (through an unnecessarily narrow interpretation of the commerce clause) upon everything that a long tradition of liberal constitutional interpretation had gained for itself. It is Mr. Justice Cardozo’s weakness that his economic realism and his grasp of the movement of social forces are not on a par with his judicial temper. He may in future cases take a more vigorous stand and seek at least to lead a Court minority back to a broad interpretation of national power. Otherwise he will be trying to meet the conditions of capitalist crisis with no better equipment than that of a man of good will.
1. Mr. Justice Cardozo: A Liberal Mind in Action, by Joseph P. Pollard. New York: The Yorktown Press. 327 pages. $3.
Max Lerner has recently been appointed lecturer in Government at Harvard University. He has contributed articles on the social aspects of law to legal periodicals and is now at work on a forthcoming book, “The Supreme Court and American Capitalism.”
This article originally ran in the July 17, 1935, issue of the magazine.