Judge Sonia Sotomayor announced today her admiration for Justice Benjamin Cardozo, who served for 6 years on the Supreme Court after nearly 30 on the New York Court of Appeals. Let’s hope she misspoke, as she has admitted to doing frequently in her speeches and written remarks.
Cardozo, she said, believes that “the facts drive the law and the conclusion that the law will apply to that case,” and had “great respect” for precedent, the legislative branch, and the Constitution.
Unfortunately for Cardozo, the facts and the law were often at odds. Cardozo is renowned for the “quick development” of the law of tort and products liability that occurred under his watch in New York State. When a consumer went up against a corporation in Cardozo’s court, there was little doubt in which direction his empathy, as well as the law of the case, would flow.
In MacPherson v. Ford, for example, Cardozo created modern products liability–and the tort crisis that now afflicts us. In Palsgraf v. Long Island Railroad, he dramatically expanded the reach of tort liability, and confused generations of law students with flowery language and vague standards. And in a variety of cases, he gave lower courts license to look far beyond the four corners of a written contract to determine its meaning.
His work on the Supreme Court was also problematic. In Steward Machine Co. v. Davis and Helvering v. Davis, for example, he gave the Court’s blessing to Social Security and rendered the 10th Amendment a nullity.
Cardozo was perhaps the leading legal realist, believing that judges should sit as philosopher-kings, determining complex issues of public policy that previously had been the domain of the political branches.
So let’s hope Judge Sotomayor doesn’t intend to be an activist on the Supreme Court and merely, once again, misspoke.