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Two Liberal Justices

ISSUE:  Summer 1940

Benjamin N. Cardoso. By George S. Hellman. New York: Whittlesey House. $3.50. Law and Politics, Occasional Papers of Felix Frankfurter. Edited by Archibald MacLeish and E. F. Prichard, Jr. New York: Harcourt, Brace and Company. $3.00.

The notion—always a myth—that a Supreme Court justice is immune to the pulls and pressures of his time has received, in recent years, a severe shock. The shock, if it has tended to weaken the prestige of the court, has also tended to quicken interest in it. Certainly the picture of the austere justice rigorously suppressing his own “universe of fact, prejudice and conviction,” all to the greater glory of the law, lacks popular appeal and even intimidates the serious student of politics; but the picture of the justice as a very human being wielding a very considerable amount of power invites closer attention and even assures a certain measure of popular interest. Recent studies of Miller and Taney bear witness to this revived interest, as do the two works under review.

George S. Hellman’s “Benjamin N. Cardozo” is an altogether pleasant and chatty biography. Cardozo is speaking through a friend, the kind of friend who writes not alone with affection but with reverence. Archibald MacLeish and E. F. Prichard, Jr., the editors of “Law and Politics,” prefer to have their hero, Felix Frankfurter, speak his own pieces. Of the two methods the latter is, of course, the more revealing—if it is the quality of mind we are after; but the former has its merits, too, in humanizing its subject. Perhaps it should be stated immediately, however, that MacLeish’s Foreword is itself a graceful and penetrating essay, adding considerably to the value of the collection.

Hellman’s Cardozo is not very different from that painted by others. He supplies a greater fund of anecdote and a greater wealth of detail but they sharpen rather than alter the impression already conveyed by three prior biographical sketches. It is the picture of a man of strong character, yet a gentle and lonely man. Unlike the more rugged Holmes, there hovers about him a certain otherworldliness, a certain charm of tradition and restraint. Even his humor, belying as in all great men the charge of solemnity, is what we should expect. It peeps out in shy remarks from time to time.

Although the biography is essentially descriptive rather than interpretative, it is easy to suggest one or two conclusions. Clearly it was an extraordinary mind and a capacity for sustained effort which carried him so far in his profession. But what of his “liberalism”? Though Jewish, he was of aristocratic Portuguese descent, and he was born well-to-do. If an explanation is needed, it can be found perhaps in his extreme sensitivity and in a certain innate feeling for the oppressed of this world. It thus derived from roots different from those of Holmes, whose liberal tendencies resulted from a clear political philosophy, and different from those of Brandeis, who had fought the fight in the arena. Though different, the roots are no less authentic, disclosing again the catholic quality of the liberal tradition.

The flaw in this book rests on a self-imposed limitation which the author need not and should not have made. With lay humility he avowedly attempts not an analysis of the man as judge but of the man as person. Needless to state, the separation is impossible to adhere to as the work itself discloses: that is, it is dotted with references to Cardozo’s opinions and to his published works. At the same time this material is not used to best effect. It is not used to show the bent of Cardozo’s mind though his opinions and work mirror that bent admirably; nor is it used for dramatic effect. This is a pity because dramatic effect would have been heightened by painting in the background of, say, the Russian cases decided while Cardozo was on the New York Court of Appeals, or the social security cases decided while he was on the Supreme Court. Certainly it is his cases and their effect which give significance to the judge’s work. This material might have been accommodated, too, without lengthening the book, provided somewhat slighter emphasis had been given the cataloguing of honors and the encomiums of friends.

One does not sense in Cardozo—or Holmes—the feeling of the crusader. With Frankfurter, as to a certain extent with Brandeis, it is otherwise. It is the zeal of the crusader, without the blueprint of the reformer, that underlies much of his writing. It is pamphleteering in the best sense of the word. It is the cry not for specific reforms but against specific injustices.

This gives strength and pungency to what he writes. On the one hand, it is the strength of the dissenting opinion which speaks, not to a compromising present, but to a hoped-for future. On the other hand, it is the strength of the empiricist, scornful of absolutes, scornful of plans, intent on the ad hoc, bit by bit approach.

The strength of this approach is best revealed in the exercise of the critical faculties, amply illustrated in about half of the essays in “Law and Politics.” The weakness is usually revealed in the attempt to push beyond criticism to a better working order. It is perhaps not without significance that most of Frankfurter’s major works have been written in conjunction with others.

Most of these essays—I put aside the analysis of the Sacco and Vanzetti case and the highly appreciative and excellent studies of Holmes, Cardozo, and Brandeis—reveal this weakness. They show a mind operating brilliantly on a level which neither requires nor exacts the utmost in intellectual effort. For instance, in the conclusion to “Law and Order,” he says (and the same refrain recurs elsewhere) that “the spirit and the inventive ferment of the scientist must be brought to bear in industry”; in the concluding essay, “The Shape of Things to Come”: “Once our temper of mind towards the problems that confront us has changed it ought to be more easy for us than for any other people, by virtue of our good fortune, to achieve with measurable success a gracious and civilized society.” To say these things is to fall back to a homiletic level. Certainly the urge to experiment and a fresh climate of opinion are needed—but it should be recognized that clearing the ground is not so tough a job as building the mansion.

These essays show, too, that Frankfurter is not, as so many seem to think, a dangerous left-wing influence. Indeed, he avoids extremes of all kinds. If he urges with all the fervor of a Stuart Chase that we get behind the symbols to the “realities” (” ‘Government’ is a large abstraction for a little Burleson”), he also senses the mystic importance of the Zeitgeist; if he urges pragmatic experimentation, he also preaches the importance of the scholar’s “theory”; if he believes in the people he also believes in the expert; if he sees the need for greater distribution of the goods of life, he also sees the need for making the distribution with due attention to the amenities; if he teaches the need for judicial humility, he also recoils at attaining it by spanking. In short, he cleaves close to a philosophic premise which abhors absolutes and shies at abstractions.

This does not mean that he is lacking in force. On the positive side, there is brilliance in execution and a power of close analysis. On the negative side, there is the felt lack of a more positive philosophy and the overglorification of method. But he knows what he does not like. He does not like tyranny and oppression, whether in the realm of politics or the realm of economics. And he shares with liberals, perhaps more than Holmes ever did, the innate conviction that the similarities between man and man are fundamentally more important than the differences. He lacks Holmes’s clear political philosophy, and he discloses no such feeling for economic theory as Brandeis had. Furthermore, unlike Holmes, Brandeis, and Cardozo, his mind is not geared to the humble ways of Common Law and Equity. But he is sensitive to the needs of his time, and these essays buttress the hope he will measure up to those masters he so fervently admires.


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