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Sotomayor's Favorite Justice? Cardozo

By Big Tent Democrat, Section Supreme Court
Posted on Thu Jun 04, 2009 at 06:06:01 PM EST
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Must be a racial pride thing . . . Via CQ:

According to Maine Republican Susan Collins, Sonia Sotomayor's favorite Supreme Court justice is Benjamin Cardozo.

Kidding aside, Cardozo was the greatest American common law judge of his time and probably of the 20th Century (I still give John Marshall the all time award.) Good choice Judge Sotomayor.

Speaking for me only

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    Sotomayor's Favorite Justice? Cardozo | 37 comments (37 topical)

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    heh (none / 0) (#1)
    by andgarden on Thu Jun 04, 2009 at 06:13:41 PM EST
    Speaking of Marshall, I see in Sotomayor's filled in Judiciary Committee questioner that she once presided over an event called "Rearguing Marbury."

    Er, *questioneer (none / 0) (#2)
    by andgarden on Thu Jun 04, 2009 at 06:14:39 PM EST


    Parent
    That seems wrong too (none / 0) (#3)
    by Big Tent Democrat on Thu Jun 04, 2009 at 06:17:47 PM EST


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    Spelling Bee Ding! (none / 0) (#4)
    by Big Tent Democrat on Thu Jun 04, 2009 at 06:19:04 PM EST
    Q-U-E-S-T-I-O-N-A-I-R-E

    Can't tell you the etymology.

    Parent

    Um. ding to me too (none / 0) (#5)
    by Big Tent Democrat on Thu Jun 04, 2009 at 06:20:04 PM EST
    Missed an n.

    Parent
    BIG er (none / 0) (#6)
    by andgarden on Thu Jun 04, 2009 at 06:20:27 PM EST
    I told you last week: I can't spell for sh*t. But reading so many polls, this is one I ought to know.

    Parent
    Just be sure you spell the buzz words (5.00 / 1) (#7)
    by oculus on Thu Jun 04, 2009 at 06:33:07 PM EST
    correctly on the bar exam.

    Parent
    Not quite there yet. . . (none / 0) (#9)
    by andgarden on Thu Jun 04, 2009 at 06:35:53 PM EST
    Though I did just have a pretty good semester.

    Parent
    Good for you. Now if you can just survive (none / 0) (#10)
    by oculus on Thu Jun 04, 2009 at 06:37:23 PM EST
    that summer job.

    Parent
    I recently read an extended discussion (none / 0) (#8)
    by oculus on Thu Jun 04, 2009 at 06:34:15 PM EST
    as to whether Justice Cardozo, who was of Portuguese ethnicity, should be considered Latino.  Inconclusive.

    Justice Cardozo (none / 0) (#11)
    by Zorba on Thu Jun 04, 2009 at 07:18:07 PM EST
    was a Sephardic Jew.  After the Portuguese Inquisition, which, along with the Spanish Inquisition, resulted in the expulsion of the Jews from the Iberian Peninsula, I'm not sure that the Portuguese themselves would have considered Cardozo "Portuguese" (or Iberian, or Hispanic, choose your terminology).  Probably not, since they killed or expelled their Jews, who had been there for centuries.

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    I think it's probably right as a matter of history (none / 0) (#12)
    by andgarden on Thu Jun 04, 2009 at 07:23:10 PM EST
    that he was first and foremost a Jew. Of course, most American Jews are Ashkenazi (German and eastern european), and have been so since at least the turn of the last century. I wonder whether Cardozo knew ladino?

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    Don't look if you don't want to get angry; (none / 0) (#13)
    by oculus on Thu Jun 04, 2009 at 07:33:30 PM EST
    but the Wiki article on Cardozo quotes none other than Jeffery Rosen re Cardozo's sexual orientation.

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    Just like Abe Lincoln? (none / 0) (#14)
    by andgarden on Thu Jun 04, 2009 at 07:40:31 PM EST
    I think it's really hard to look more than a little bit into the past and make that kind of determination.

    Parent
    First and foremost ... (none / 0) (#15)
    by Peter G on Thu Jun 04, 2009 at 08:10:57 PM EST
    a New Yorker. (Which may be relevant to Sotomayor's selection of him, although it may also be that she is a fan of his Nature of the Judicial Process (1921).)  As an adult, Cardozo professed agnosticism, while identifying with his Jewish heritage.

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    From personal experience I can say (none / 0) (#16)
    by andgarden on Thu Jun 04, 2009 at 08:25:16 PM EST
    that there are a great many Jewish agnostics and atheists. So far as I know, none of us see any contradiction: being Jewish does not simply mean a subscription to certain beliefs about God.

    And as for being a New Yorker, well, QED. ;-)

    More seriously, people are defined by their environment as much as they define themselves. To the world, Cardozo was a Jew.

    Parent

    Was he her favorite judge before the nomination? (none / 0) (#17)
    by diogenes on Thu Jun 04, 2009 at 09:56:31 PM EST
    Just wondering.

    Yeah, that's a good question.... (none / 0) (#19)
    by EL seattle on Fri Jun 05, 2009 at 12:41:25 AM EST
    ...for all of us who aren't members of the great and hallowed legal profession.  Do Supreme Court Justices have fan clubs?  Is there a Ninth Circuit Fantasy League?  Is there a legal version of Tiger Beat?

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    Thurgood Marshall (none / 0) (#18)
    by samtaylor2 on Thu Jun 04, 2009 at 10:13:11 PM EST
    I was listening to someone on the right bad mouth Sotomayer a week ago (saying she wasn't very smart), and in the processess seemed to say that Thurgood Marshall was not a good justice- is there any truth to this?

    depends on what you mean (none / 0) (#21)
    by Bemused on Fri Jun 05, 2009 at 07:08:35 AM EST
      In his latter years on the court, Marshall had declined physically and perhaps mentally and he is often used as one of the examples of the pitfalls of lifetime tenure. he's certainly far from the only justice who may have stayed too long though and that, in my opinion, is a reasonable price to pay for the benefit of judicial independence at the high court level. No system is perfect and so long as we don't have multipple justices at once who have slowed I think the ability to resist pressure of politics is worth it.

      I also think it fair to say Marshal was more suited to and more capable in his role as advocate, but then he was one of the most accomplished advocayes of his century.

    Parent

    I'd agree that TM was (none / 0) (#26)
    by brodie on Fri Jun 05, 2009 at 09:12:48 AM EST
    more suited as CR advocate than as a Justice.  But while he was not considered an intellectual heavyweight on the Ct -- and most aren't anyway -- he was still a strong and consistent voice for liberal jurisprudence and for the oppressed and unpopular minority.

    What the Right has done over the years, or when it suits them, is to take the fact of his non-intellectual great status and along with his solid liberal voting record, especially for criminal defendants, turn him into a radical lefty activist unworthy of being on the Bench.

    But stay too long he did, as others have and will under the current badly flawed system of lifetime tenure which encourages some cynical calculating by the president nominating and the sitting Justices as they calculate when to retire or how long to merely hold on even when they know, as with TM, that they've lost more than a step or two.

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    i don't know that "badly flawed" (none / 0) (#32)
    by Bemused on Fri Jun 05, 2009 at 03:05:13 PM EST
      ia a fair characterizaton. I'll give you imperfect, but only with the caveat that perfection is impossible.

      I think establishing a term of years would be a far worse way to go (at least at the supreme court level)  because the loss of indenpendence and insulation from transient politcal pressures.

      Some have suggested a system where if informal encoragement for an infirm justice to retire fails there would be a mechanism to remove a justice based on disability. In theory that sounds  OK,  but I think there is legitmate concern that infirm justices with the "wrong" views might be more likely to face removal than infirm ones with popular views.

     

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    No truth to it whatsoever. (none / 0) (#23)
    by BobTinKY on Fri Jun 05, 2009 at 08:35:53 AM EST
    And his staying on the court in order to avoid  a Reagan or Bush-appointed successor was heroic, if utlimately unsuccessful, in my view.

    Parent
    Thanks (none / 0) (#24)
    by samtaylor2 on Fri Jun 05, 2009 at 08:40:49 AM EST


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    Isn't it a well hashed conservative canard (none / 0) (#25)
    by jeffinalabama on Fri Jun 05, 2009 at 08:45:22 AM EST
    that Marshall was an inferior justice?

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    I Don't Know (none / 0) (#20)
    by kaleidescope on Fri Jun 05, 2009 at 01:54:28 AM EST
    From first year of law school, I will never forget reading Hynes v. New York Central Railroad.  Cardozo's tour de force reasoning and writing in that case was something to behold.  I haven't seen much in John Marshall's writing that eclipses what Cardozo wrought there. You could probably also say the same for McPherson v. Buick and Erie v Tompkins.

    Not even William Brennan could write like that.

    Speaking for myself only.

    These are all state court cases. (none / 0) (#22)
    by BobTinKY on Fri Jun 05, 2009 at 08:33:15 AM EST
    Cardozo is without peer as a common law judge.  His performance as a Supreme Court Justice, however, was lackluster.  Maybe the issues facing a state court judge were more interesting to him.  That is certainly where his reputation was earned.

    In terms of Supreme Court service, Marshall and Brennan have to rank well ahead of Cardozo.

    Parent

    I wonder if in BC's case (none / 0) (#27)
    by brodie on Fri Jun 05, 2009 at 09:19:17 AM EST
    he was nominated to the Bench a little too late in his life.  He died only 6 yrs after Hoover selected him in 32.

    I couldn't second the conclusion about his High Court record, not having studied it closely, but Cardozo was one of only a few who fairly consistently upheld New Deal legislation, often in dissent.  That's good enough for me.

    Parent

    I think you nailed it (none / 0) (#31)
    by BobTinKY on Fri Jun 05, 2009 at 11:53:37 AM EST
    and , as I said below, not a bad justice, his greatness was primarily the result of his earlier work on the NY Court of Appeals.

    Parent
    Erie RR v Tompkins (none / 0) (#28)
    by Peter G on Fri Jun 05, 2009 at 09:39:50 AM EST
    was written by Brandeis, not Cardozo, in 1938 (when Cardozo was no longer on the Court), and was a Supreme Court decision, not a state court case.

    Parent
    Details, details. (none / 0) (#29)
    by oculus on Fri Jun 05, 2009 at 11:10:49 AM EST


    Parent
    Speaking of details (5.00 / 1) (#36)
    by Peter G on Fri Jun 05, 2009 at 04:10:31 PM EST
    I was wrong about Cardozo no longer being on the Court in April 1938 when Brandeis wrote Eire RR v Tompkins.  He "took no part" in the decision, it says; presumably already too ill by then.  But he was still officially a Justice.  Brandeis was on from June 1916 to January 1939 (seat 6), and was succeeded by Douglas.  Cardozo, who succeeded Holmes (seat 3), sat from March 1932 to July 1938 and was succeeded by Frankfurter.  It's all here.

    Parent
    I stand corrected on state cases (none / 0) (#30)
    by BobTinKY on Fri Jun 05, 2009 at 11:52:13 AM EST
    but my point about Cardozo being a lackluster Justice stands.  Not that he was a bad justice, or that his views on the court were not progressive, just that he did not stand out in the way he did on NY Court of Appeals and prior.

    Parent
    OK how many justices who served with Cardozo (none / 0) (#33)
    by Bemused on Fri Jun 05, 2009 at 03:29:10 PM EST
     can you name without looking it up? (be honest)

      I'm not sure what you measn by "progressive" though. One of Cardozo's most famous dicta comes from Palko:

     "This [ 5th Amnd privilege against self-incrinination] too might be lost and justice still be done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to ordinary inquiry."

    Now he did write opiions declaring SS, min. wage laws and other New Deal era governemtn acts were constitutional, but I don't think he'd be considered "progressive" today by a long shot and was a mixed bag in his own era.

    Parent

    here's the list (none / 0) (#34)
    by Bemused on Fri Jun 05, 2009 at 03:44:04 PM EST
    Van Devanter
    Lamar
    McReynolds
    Brandeis
    Sutherland
    Butler
    Stone
    Roberts
    Black
    Reed

      Cardozo was a stand out in many people's eyes among that bunch. He was only on the court for 6 years so the number of opinions he wrote is not large both because he was frequently in the minority and he lacked seniority. It's not really fair to denigrate his service and he is widely considered one of the foremost legal thinkers ever to be placesd on the court.

    PS, no one's even mentioned Palsgraf by far his most famous opinion. (Yes, I know state court but it is THE SEMINAL OPINION nationally on causation and basically established the coherent principoles of proximate causation universally followed today in this country.)

    I find Palsgraf equal parts incoherent (none / 0) (#35)
    by andgarden on Fri Jun 05, 2009 at 03:51:43 PM EST
    and asinine.

    Parent
    you're entitled to your opinion (none / 0) (#37)
    by Bemused on Mon Jun 08, 2009 at 08:30:29 AM EST
      I actually think that Holmes, Cardozo and Brandeis might deserve some credit for helping legal writing evolve from the almost impenetrable style of the 19th and early 20th Centuries. At least they used paragraph breaks more than every few pages and kept the 100 word sentences to a minimum.

      The doctrine of Palsgraf is highly debatable and there is some attractiveness to the dissent which boils down to if you commit a wrong then you should be liable for the consequences, but there is still no debating that Cardozo's opinion is the the seminal opinion on the limiting of liability based on reasonable forseeability and thus relegating strict liability to special classes (products liability, inherently dangerous acts, etc.)

      It's also another opinion that calls into question whether Cardozo should be labeled a "progressive" if that word is intended to mean anything similar to what it is usually intended to mean today. Palsgraf could be considered a "pro-business" decision.

     

    Parent

    Sotomayor's Favorite Justice? Cardozo | 37 comments (37 topical)

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