In the Book and Literary World

Mr. Justice Cardozo: A Liberal Mind in Action. By Joseph P. Pollard. 327 pp. New York: The Yorktown Press. $3.00.

Mr. Justice Cardozo once wrote: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they cannot name have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs, a sense, in James’ phrase, of ‘the total push and pressure of the cosmos,’ which, when reasons are nicely balanced, must determine where the choice shall fall.”

There, in his own words, is the best statement of Cardozo’s judicial and social philosophy that you are likely to come across. It contains the key to his liberalism, to the constructive cast of his mind which maintains a profound view of humanity against the legalistic quibblings of his conservative compeers, and to the ancient and intuitively recognizable qualities of justice and wisdom which pervade his work. Mr. Pollard, well known in his own right as a commentator on matter legal and political, has undertaken to show in this book how Cardozo’s philosophy has illuminated and dramatized his decisions from the bench.

At least one force in the stream of tendency is, for Cardozo, his Jewish origin. The hard-won wisdom of twenty centuries of oppression animate his decisions no less than those of his distinguished colleague, Justice Brandeis. We find him constantly on the side of the persecuted and the exploited; we find him constantly threading the maze of rigid constitutions and discriminatory laws passed at the behests of the vested interests, seeking the kernel of justice and right that he alone could discover. In his workmen’s compensation decisions, in his labor and social welfare decisions, he was always able to work his way through strict constructions of the law to the concept of the greatest good of the greatest number. And especially in cases involving family strife—divorce proceedings, adoption proceedings and suits appealed from the Surrogate’s Court—he showed that he possessed an insight, rare in a judge of a high court but characteristic of Cardozo’s race, into the spiritual and emotional factors which motivated the domestic conflicts he was called upon to settle. But it is Cardozo’s living demonstration of liberalism in action which is most important to the Jews. Every appeal to the Fourteenth Amendment as a narrow and strangling conception of the rights of property which he and Brandeis reject, every statute advancing welfare work and ameliorating the lot of labor they uphold, every decision denounced by the interests as radical, serves to extinguish a hundred anti-Semitic slanders set abroad by bigots, demagogues and fascists.

Pollard unfolds the story of Cardozo’s intellectual development by grouping his cases subjectively; thus, in the chapter on civil rights, by means of an analysis of decisions we obtain a complete picture of Cardozo’s view of the position of the individual within the State—a matter of the utmost importance today. A fascinating chapter is entitled “Perils of the Written Word: Libel, Plagiarism, Morals and Censorship.”

But by far the most important chapters discuss Cardozo’s work in the Supreme Court, and in particular, his attitude toward the New Deal. For, as the most recently appointed Justice, it can be fairly said that it is he who swings the balance of those famous four-to-five decisions. His vote in all the New Deal cases has been, purely and simply, a vote in favor of the administration’s measures to relieve distress and to restore prosperity; it has been a vote for Federal supremacy; it has been a vote against private individuals who clamored for the protection of their property at the expense of the public good.

Pollard’s closing section is worth quoting in full: “The American people may well be proud of Justice Holmes’ successor. Both are realists. Both are patriots whose tolerance and urbane cosmopolitanism prevent any exhibition of fanatic zeal. Like Holmes, Cardozo knows that the mighty power of a Supreme Court Judge is wielded best when wielded to promote rather than to destroy the social experiments performed in the legislative laboratories of the State and nation. Like Brandeis, he votes to uphold the lawmakers’ efforts because he believes their efforts will promote the social good. It may well be that Cardozo will bring the United States Supreme Court, in the years that are to come, to a position of established leadership in democratic thought, even as he brought the New York Court of Appeals to the same high and welcome standing.”