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The Supreme Court

Benjamin Cardozo (1932-1938)

Benjamin Cardozo's family history dates back to the Revolutionary War in which his ancestors fought against the British. His father was a New York Supreme Court justice but was forced to resign in 1872 under threat of impeachment.

Benjamin Cardozo received his law degree from Columbia Law School and was admitted to the bar in 1891. After proving his success as a courtroom lawyer, Cardozo was elected to the New York Supreme Court in 1913. He served as associate judge and chief judge on the New York Court of Appeals for 18 years, writing over 500 opinions for the court.

Just the Facts

William Borah, who at the time was one of the most powerful Senate Committee chairmen, strongly supported Cardozo's nomination. He helped to convince President Hoover to make the nomination, according to Henry Abraham in his book, Justices, Presidents, and Senators. Abraham says when Hoover showed Borah the list of possible candidates to replace Oliver Wendell Holmes, Cardozo was on the bottom of the list with the notation “Jew, Democrat, New York.” Borah told him he was handed the list upside down and convinced Hoover to appoint Cardozo, according to Abraham.

His reputation grew nationwide and there was widespread support for this nomination to the Supreme Court. Support for his nomination came from all sides: labor, business, liberals, and conservatives. Taft refused to nominate Cardozo while he was president in the 1920s because he viewed him as too liberal. Herbert Hoover reluctantly nominated him in 1932 because by that time the groundswell of support was too large to fight off.

Even though he was Jewish, he met with none of the anti-Semitism that Brandeis experienced. His nomination sailed through the Senate unanimously without debate ten seconds after it was taken up on the floor of the Senate. Once on the court, Cardozo aligned with Brandeis and another leading liberal, Harlan Stone.

Palko v. Connecticut

One of the key cases for which Cardozo wrote the Court's opinion was Palko v. Connecticut in 1937. Frank Palko faced a charge of first-degree murder, but was convicted instead of second-degree murder and sentenced to life imprisonment. The state of Connecticut appealed the decision because of errors made at trial and won a new trial for Palko. The appeal was passed on errors by the trial judge because he excluded the defendant's confession, excluded certain testimony that would have impeached the defendant's credibility, and instructed the jury incorrectly regarding the difference between first and second degree murder.

Palko was convicted of first-degree murder and sentenced to death after the second trial. Palko's attorneys appealed the second trial to the Supreme Court on the belief that the second conviction violated the protection against double jeopardy guaranteed by the Fifth Amendment to the constitution. They believed this protection applied to state cases because of the Fourteenth Amendment's due process clause.

The Supreme Court upheld Palko's second conviction and the majority opinion was written by Cardozo. In his opinion, Cardozo wrote:

  • “The state is not attempting to wear the accused out by a multitude of cases with accumulated trials. It asks no more than this, that the case against him shall go on until there shall be a trial free from the corrosion of substantial legal error. … This is not cruelty at all, nor even vexation in any immoderate degree. If the trial had been infected with error adverse to the accused, there might have been review at his instance, and as often as necessary to purge the vicious taint. A reciprocal privilege, subject at all times to the discretion of the presiding judge … has now been granted to the state.”

Before he died in 1938, Cardozo wrote over 100 opinions during his short six-year period on the Court.

book cover

Excerpted from The Complete Idiot's Guide to The Supreme Court © 2004 by Lita Epstein, J.D.. All rights reserved including the right of reproduction in whole or in part in any form. Used by arrangement with Alpha Books, a member of Penguin Group (USA) Inc.


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