SOURCE: "The Styles of Mr. Justice Cardozo," in Life, Law and Letters: Essays and Sketches, Houghton Mifflin Co., 1979, pp. 47-58.

[In the following essay, Auchincloss praises Cardozo's writings for their literary qualities, using examples from his legal opinions to illustrate his various methods of decision making and his different prose styles.]

When I went to the University of Virginia Law School in the fall of 1938, I was determined to turn my back forever on the world of letters. I had failed—I had decided grimly—because my first novel, written during my junior year at Yale, had been rejected by Scribner's. It was thus ordained, I reasoned with the violence of youth, that I should never qualify for the exotic world of art and must resign myself to a more mundane profession. Although I thought I had been humbled, there was still a note of then unconscious condescension in the attitude with which I approached my new trade. It was, in the murky depths of my deepest reflections, a second best. The world of law might have seemed to me a more "real" world—a world, to put it crudely, more fit for men, "real" men (whatever they were)—but it was still, to my naiveté, inferior to the one to which I had, however rashly, aspired.

I was in for some pleasant surprises. I soon found that the history of English jurisprudence and the growth of the common law was quite as interesting as more general histories that I had enjoyed at Yale. And cases in contracts, torts, and criminal law, where judges wrestled to fit new factual situations into ancient patterns of accepted conduct, adjusting, modifying, and sometimes making over the latter in accordance with individual theories of what "law" was or should be, fascinated me. What was a judge, describing the actions of a plaintiff or defendant in a given situation in such a way as to justify his judgment of those actions, but a novelist describing his characters so as to lend an air of verisimilitude to the moral atmosphere that he seeks to create? Perhaps I had found, like Maeterlinck's children, that the bluebird was all the while at home.

But there were aspects of the law less malleable even to an imagination as determinedly romantic as mine then was. What could it do with the flood of statute law pouring from the Congress and the state legislatures, or with the huge structure of regulations designed to interpret federal law and their appended illustrations of imagined cases where the litigants were represented by mere letters and the situations reduced to the dryest facts? Where was the possibility of drama in all of this? Where in that dreary sea of verbiage was there any prose that breathed or any detectable style? It was words, simply words, often so jumbled and obscure as to make finding the sense like hacking one's way through tangled underbrush with a machete.

The volume of such law was not then what it was to become, but the future was already marked. The masses in a world increasingly socialized were not going to allow laws affecting their daily lives to be subject to what they considered the whims of judges reared in a more individualistic society. The compulsion to legislate had already reached the point where a session of the Senate or House was labeled good or bad in accordance with the quantity of statutes passed. We were not far from the Emperor Justinian who had prohibited the judiciary from commenting on his code.

Now, of course, Justinian's effort was futile. No quantity of laws, however astutely drafted, or of regulations, however shrewdly forecast, can cover all, or even most of the situations that will arise among litigants. Judges must always exist to interpret laws. Forty years after my first term in Virginia, we have more judges, harder worked, than ever before, and in certain areas of constitutional law, notably civil rights, they are even more important. But it is still an obvious truth that when a judge's opinion may be rapidly reversed, modified, or even affirmed by a new statute or code, that opinion is going to be a less valuable precedent. As codified law, constantly modified, assimilates or rejects the decisions and opinions of the courts, these latter must become more ephemeral. We shall have no more great common law judges.

Now what is the harm of this? Probably none. I am writing subjectively. To me, a reluctant law student and a frustrated novelist, the vast, bristling black and white volume of statutory law and regulations seemed like a glacier moving ineluctably over the land to freeze below the ice the giant figures of Mansfield, Eldon, Holmes, and Cardozo, now barely discernible to the living pygmies on the surface. It was as if all my secret fears of the inevitable triumph of the philistine over the artist in our culture had been confirmed.

The figure who most helped to revive my stumbling romanticism was Benjamin Cardozo. I had seen him once on a trip to Washington when I was a boy. My father had taken me to view the Supreme Court, then sitting in the Capitol, and had pointed out the white-haired figure with the beautiful ascetic face, whispering: "There is the great man." One of the first books I was told to read in law school was The Nature of the Judicial Process, and I was immediately spellbound by a prose so formal, so majestic, so elaborate, so almost Jamesian, and yet so smooth and clear and soft. Here was a writer indeed!

I was also interested to note that he, too, was concerned that codes might "threaten the judicial function with repression and disuse and atrophy." But he did not believe that, in the long run, this would really happen. What his little book was more about was that "land of mystery" where legislation is silent and where a judge must "look to the common law for the rule that fits the case." Here indeed, as Blackstone had put it, he was the "living oracle of the law."

As I began now to study Cardozo's opinions in contracts and torts, the law became something exciting, elusive, almost mystical. It seemed to me that statutes and regulations were so much fustian of ambitious politicians and dreary bureaucrats, that we really lived in a chaos of instincts and habits and appetites and prejudices, and that law, true law (my early extravagance must be allowed), existed only in that moment when a judge fitted a particular principle to a particular set of facts, and then expired, to be remembered only in its epitaph, the judge's opinion. It was all the more important that that opinion should be beautifully constructed and expressed.

Let me try to recreate my early impressions of Cardozo by analyzing, as I saw it then, his opinion in DeCicco v. Schweizer, 221 N.Y. 431, decided by the New York Court of Appeals in 1917. No clause of a constitution or of a statute, state or federal, was here involved. The law had to be found, interpreted, and modified, by a "living oracle."

The stated facts of the case at once put me in mind of the opening of a Henry James novel. Count Oberto Gulinelli of Ferrara was engaged to be married to an American girl, presumably an heiress, one Blanche Josephine Schweizer. Her father, Joseph, evidently pleased by the prospect of this noble addition to his family, had handed his future son-in-law a written promise to pay his daughter $2500 a year after they were married. Payment was begun in 1902, immediately after the event; but in 1912 Mr. Schweizer refused to honor further his commitment. Suit was brought against him, not by his daughter or her husband, but by one DeCicco to whom the daughter had assigned her father's promise.

Alas, the romance of The Golden Bowl seemed already to have faded. We did not know why the father had repudiated his promise or why the daughter had sold it. The family relationship had evidently deteriorated. The fate of international marriages at the turn of the century was almost never smooth and rarely edifying.

Cardozo proceeded to review the law. It was the established rule in New York that a promise made by A to B to induce him not to break his contract with C is void because there is no consideration to support the promise. B is already under obligation to fulfill his contract with C. Mr. Schweizer had promised the Count that he would pay money to his wife if the Count carried out an engagement to which the Count was already pledged. Did not the consideration have to fail? Ah, but what if the promise had been made to B and C, to the Count and Blanche?

The writing was signed by her parents; it was delivered to her intended husband; it was made four days before the marriage; it called for a payment on the day of the marriage; and on that day payment was made, and made to her. From all these circumstances, we may infer that at the time of the marriage the promise was known to the bride as well as the husband, and that both acted upon the faith of it.

Consideration for Mr. Schweizer's promise now becomes evident. For even if the Count and Blanche were both obliged to fulfill their contract to marry, even if neither of them had the right, acting alone, to withdraw (remember that in that day a breach of a promise to marry was still actionable), it was equally clear that, acting together, they had a right to rescind. The law had no interest in forcing two unwilling persons to wed. It was this right that they gave up in going to the altar on the strength of the bride's father's promise, and for this consideration the latter had now to continue to pay as he had said he would pay, even to his daughter's assignee.

But did Mr. Schweizer really intend to place such pressure on the young couple? Did he really want two reluctant persons to enter the state of matrimony for the purpose of securing a financial allowance? Cardozo said that this did not matter:

It will not do to divert the minds of others from a given line of conduct, and then to urge that because of the diversion the opportunity has gone to say how their minds would otherwise have acted. If the tendency of the promise is to induce them to persevere, reliance and detriment may be inferred from the mere fact of performance. The springs of conduct are subtle and varied. One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.

And so the shabby facts, if shabby they were: the Count seeking a dowry, the sale of the promise, the dunning of the old father, were rewoven into a hard fine rule of law that seemed to embrace the situation with some of the moral beauty of The Golden Bowl. Cardozo went even further, too far perhaps. He reinforced his conclusion with "those considerations of public policy which cluster about contracts that touch the marriage relation." Could he really have believed that the Schweizer-Gulinelli nuptials were for the greater good of society? Or was he establishing a basis for distinguishing the case if later situations arising in the business world should make its application unjust?

I was delighted to discover that Cardozo had written an essay entitled "Law and Literature," in the very beginning of which he quoted Henry James! The great novelist was cited to support Cardozo's thesis that a judicial opinion should always be literature, that style and substance were inextricably fused in writing:

Don't let anyone persuade you (James wrote to Hugh Walpole) … that strenuous selection and comparison are not the very essence of art, and that form is not substance to that degree that there is absolutely no substance without it. Form alone takes, and holds and preserves substance, saves it from the welter of helpless verbiage that we swim in as in a sea of tasteless tepid pudding.

Cardozo then proceeded to divide the forms, or styles, or methods if you choose, of judicial opinions into six categories. He listed them as follows: the magisterial, where we hear "the voice of the law speaking by its consecrated ministers with the calmness and assurance that are born of a sense of mastery and power"; the laconic and the conversational, which overlap, where the homely illustration makes its way by its appeal to everyday experience and where the doubtful precept is brought down to earth and made to walk the ground; the refined, which, if only held back from euphemism, lends itself to cases where there is need of delicate precision; the demonstrative, or persuasive, which differs from the magisterial in its freer use of illustration, analogy, history, and precedent; and the tonsorial, which is merely a clutter of quotations from other opinions.

Cardozo offers examples of each category by quoting other judges, but he would have done as well to limit the illustrations to his own opinions, as I shall now try to do.

Here is a good example of his magisterial style. A pacifist attacked the validity of a California statute that required all students in a state university to take a course in military science and tactics. The Supreme Court rejected the argument, and Cardozo made this statement in a concurring opinion:

Never in our history has the notion been accepted, or even, it is believed, advanced, that acts thus indirectly related to service in the camp or field are so tied to the practice of religion as to be exempt, in laws or in morals, from regulation by the state … The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of government. One who is a martyr to a principle … does not prove by his martyrdom that he has kept within the law.

(Hamilton v. Regents of the University of California, 293 U.S. 245)

The laconic and conversational styles are often laced with maxims to illuminate the point to be made. Cardozo admired Holmes intensely for his brevity and pungency, and on this occasion emulated him almost to the point of imitation:

Liberty of contract is not an absolute concept. It is relative to many conditions of time and place and circumstance. The Constitution has not ordained that the forms of business shall be cast in imperishable moulds.

A literary allusion can be used to give point and emphasis to statements otherwise almost too plain:

Aviation is today an established method of transportation. The future, even the near future will make it still more general. The city that is without the foresight to build the ports for the new traffic may soon be left behind in the race for competition. Chalcedon was called the city of the blind because its founders rejected the nobler site of Byzantium lying at their feet.

Humor may be allowed to lighten the conversational style, or presumably any style save the magisterial, but, as Cardozo warns, it is chancy. He himself, as chief judge of New York, used it with good effect in a case brought by a plaintiff who had fractured his kneecap riding on a moving belt in Coney Island called "The Flopper." Cardozo, denying him relief on the eminently sensible ground that one who takes part in such a sport accepts the dangers that inhere in it insofar as they are obvious, commented:

The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

(Murphy v. Steeplechase Amusement Co., 250 N.Y. 479)

But the demonstrative or persuasive is Cardozo's most characteristic style. Rarely was he sure enough to use the magisterial, and his more difficult cases were beyond the laconic. Here we see him wrestling with the agonizing question of whether or not a man, sentenced by a trial court to life imprisonment for murder in the second degree, may be executed when the state, appealing his conviction, has obtained the death sentence in a second trial resulting in a verdict of murder in the first. Cardozo, writing for the majority of the Supreme Court, held that the defendant had not been placed in double jeopardy and must die:

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.

(Palko v. State of Connecticut, 58 Sup. Ct. Rep. 149)

There is here no organ note of judgment from the sky to blast the unhappy defendant. Division among the cases is readily admitted, even that the line of division, in a hasty survey, may seem "wavering and broken." Proper analysis, however, will induce a different view. Then will emerge "the perception of a rationalizing principle which gives the discrete instances a proper order and coherence."

But the defendant must not die for subtleties. The reason must be clear, and Cardozo attempts to persuade us that it is:

On which side of the line the case made out by the appellant has appropriate location must be the next inquiry and the final one. Is that kind of double jeopardy to which the statute has subjected him a hardship so acute and shocking that our polity will not endure it? Does it violate those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions"? The answer must surely be "no."

One may regret that Cardozo went on to conclude his opinion with the dictum that the second trial was not only no cruelty to the defendant but not even "vexation in any immoderate degree"! The wretched man will die, it almost seems, for the perfect balance of the law. The privilege of appeal, granted to the state by the statute in question, is no "seismic innovation":

The edifice of justice stands, its symmetry, to
many, greater than before.

Another example of the careful balancing of opposing precedents and the arrival at a conclusion almost in the manner of a brief is Cardozo's opinion for the New York Court of Appeals supporting its holding to admit evidence against a defendant to a larceny charge despite the fact that this evidence has been obtained in a police search made without a warrant. "Shall the criminal go free because the constable has blundered?" Cardozo, replying to his own question in the negative, supports his position more like an advocate than a judge:

We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious. A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime… Like instances can be multiplied. We may not subject society to these dangers until the Legislature has spoken with a clearer voice… The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice.

(People v. Defoe, 242 N.Y. 13)

Examples of the refined style may be found anywhere in Cardozo, for his thinking is always subtle and deep. I take almost at random a passage from Babington v. Yellow Taxi Corporation, 250 N.Y. 14, which decided that a cab driver, killed in a collision after a police officer had jumped on his running board and ordered him to pursue a fleeing criminal, had died while in the performance of his duties for his employer. Cardozo cited an English statute of 1285:

The horse has yielded to the motor car as an instrument of pursuit and flight. The ancient ordinance abides as an interpreter of present duty. Still, as in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand. The incorporeal being, the Yellow Taxi Corporation, would have been bound to respond in that spirit to the summons of the officer if it had been sitting in the driver's seat.

Cardozo concludes his essay on law and literature by affirming that, although a judge or advocate is expounding a science, yet is he still in the process of exposition, practicing an art. The muses may look at him "a bit impatiently," but if the work is finally done they will yet "take him by the hand." I have no doubt that they have clasped Cardozo to their heart.