[In the following essay on The Nature of the Judicial Process, Powell comments on Cardozo's belief that judges too often allow personal feelings and experience to inform their decisions.]

Those who brought the Tables of Stone from Mount Sinai were not the last to thrust the lawgiver behind the mask of myth or of abstract formula. Unthinkers still assure us that ours is a government of laws and not of men, rejecting as unholy the emendation that it is a government of lawyers and not of men. Judges, they say, do but passively apply what the law in its wisdom reveals to them—or to five out of nine of them. Yet there have long been skeptics. Two hundred and four years ago Bishop Hoadley dared to say that "whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, and not the person who first wrote or spoke them"; and Lord Bramwell later revealed that "one-third of a judge is a common juror if you get beneath the ermine"; to which Mr. Justice Riddell adds that "the other two-thirds may not be far different." Mr. Justice Holmes eschews fractions for biology and physics. Forty years ago he told us that "the life of the law has not been logic: it has been experience." Recently in viewing the development of a single cell he has said: "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions." The judges of a century enjoy a range denied to the arbiter of a particular dispute; but he too has room to move about. The difference is one of degree.

Coke, an unconfirmed rumor tells us, found his Mount Sinai in his knowledge of the Latin tongue. When in need of authority for decisions he willed to reach, he would write: "As the old Latin maxim saith:"—and then he would make up the maxim. Coke may have lacked candor; but it was well that he knew what he was doing. It is from judges who know not what they do that we suffer most today—judges who think themselves constrained by principle or authority, when all that limits them is their ignorance or prejudice. This is especially unfortunate in America, where judges under the vague prescriptions of our bills of rights can veto legislation that makes a discord with their prepossessions. Modestly they may profess that it is not they that speak but the Constitution that speaketh in them; and often they are sincere, deceiving themselves when to others it is clear that they naively impute to the Constitution those personal frailties of temperament or education that long possession has made them cherish. Such judges are ignorant of the nature of the judicial process because blind to the nature and effect of their own emotional and intellectual processes. So it is that in the decisions most out of joint with the times we find ranged with the majority those judges most deficient in perception of themselves, those who link their accustomed modes of thought and feeling with something fundamental in the structure of society and find new departures so shocking that they suffer paralysis of such vision as they might in calmer mood employ. What makes a poor judge poor is as a rule less ignorance of the law than ignorance of human nature and of the nature of the judicial process.

Of such is not Judge Cardozo. The people of the State of New York are blessed in having on their highest court a man with the background, the insight, and the vision of the writer of these lectures [The Nature of the Judicial Process]. In reviewing them in the Harvard Law Review for February, Judge Learned Hand calls their author "a judge who by the common consent of the bench and bar of his State has no equal within its borders;… one who by the gentleness and purity of his character, his acuteness and suppleness of mind, by his learning, his moderation, and his sympathetic understanding of his time, has won an unrivaled esteem wherever else he is known." One would qualify this appreciation only by doubting whether Judge Cardozo's eminence is as solitary as it implies, and cite the appreciation itself as an index of where to look for one of his companions in merit. Such colleagues are likely to increase in number because of the irresistible appeal of Judge Cardozo's avowal and analysis. Only the perverse or stupid can deny his wisdom that "it is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." And in this serious business where the judge is creator and statesman, the ancient learning in sheep and buckram is but a point of departure. That Judge Cardozo knows the other springs of wisdom is told by the titles of his chapters. He points to philosophy, to history and tradition, and to sociology. That he knows the enemies who lie in wait to taint the stream is shown by his analysis of the subconscious element in the judicial process. There is ironic wisdom in his comment that "it is often through these subconscious processes that judges are kept consistent with themselves and inconsistent with one another." Something higher than consistency with himself is demanded of a judge. In a changing world where new facts press hard on the best preserved theories, the judge must be responsive to the currents of life about him. He must strive for that sympathetic understanding that will help "to emancipate him from the suggestive power of individual dislikes and prepossessions" and "help to broaden the group to which his subconscious loyalties are due."

All this is vague enough, as no one knows better than Judge Cardozo. He tells us how much easier it is to find the ingredients to be blended than to fix the proportions of the blend. In any case where logic and history and sociology contend for mastery, whose shall be the victory or on what terms shall we have peace without victory? Judge Cardozo, like wise men generally, has no general rule. He reports battles that have been waged and shows us how the line of combat shifts from age to age. Those cast-iron obdurates who resent his analysis must yield to his recital. So measured is his judgment, so fair his portrayal, that he never would satisfy a foolish generation that searcheth for a sign. None the less he leaves us with confidence that we may with safety commit our disputes to any bench responsive to the influences he sets forth. He impresses us with his faith that "in the endless process of testing and retesting, there is constant rejection of the dross, and a constant retention of whatever is pure and sound and fine." With lawyers and judges imbued with the spirit of these lectures the lag of the law would yield much of its slack. Much as bench and bar need to go to school to Judge Cardozo, his teaching is not for them alone. The frailties of lawyers are the frailties of men, and all who form judgments are subject to passion and bias and blindness. Judge Cardozo's book would be as apt if called "The Nature of the Judgment Process." The illustrations from the law are stripped of technical raiment and will little strain and much enlighten the understanding of lesser breeds without the Law. Dwellers in darkness who shun enlightenment but love good English will do well to avoid exposure to Judge Cardozo's charm. For those who fear not wisdom there is great delight in store.