He may have been one of the 'nine old men' of the Supreme Court, but he was a great old man.
The death of Justice Cardozo seems to me the worst blow which could have befallen the Supreme Court. I am not unmindful of Justice Brandeis, of course, if only because I know how Justice Cardozo revered him. He never spoke of Brandeis save almost with bated breath; he was his ideal. Cardozo would be the first to protest against anyone's being put before the Massachusetts justice. What I mean is that Justice Cardozo, being only sixty-eight years old, with an ever young and forward-looking spirit, would have liked to give at least ten more years of service to the Court, whereas we can hope for nothing like that from Justice Brandeis upon whose shoulders now rest eighty-three years. Both men have been the greatest ornaments of the court since the retirement of Justice Holmes.
I know that there are many who believe that in time Hugo Black will rank with them; but of this I am sure: no one whom Franklin Roosevelt could possibly appoint could combine again such deep legal lore with such high judicial integrity and honor, such exalted liberalism, with so beautiful a spirit, so rare a personality as was Benjamin Cardozo's. Others must evaluate his exact merit as a great justice, for there, being a layman, I am not competent. It was, however, my good fortune to know Justice Cardozo and I never left his presence without thanking heaven that I had once more had the privilege of being with him. For weeks, as it became all too apparent that the justice would never again take his seat, I have been wondering how I could describe to others the rare quality which was Benjamin Cardozo's and came to the conclusion that I could not adequately portray it. "Exquisite" is an adjective which invariably suggests itself, yet it is so rarely applied to men as to be rather dangerous. Still in this case it fits, for Justice Cardozo was fineness itself; he had courage with delicacy; charm with firmness; sensitiveness to a degree; a righteousness worthy of a great prophet.
It was impossible to be with him and believe that he could be capable of anything narrow, or illiberal, or small. You found him extraordinarily well informed as to everything going on in the world and judging it judicially, discriminatingly, but never to the extent of suppressing his own feelings. When it came to the discussion of international wrongdoing, of crimes against groups and peoples and countries, he could and did blaze with indignation. Never was there a more modest man, never one with less pride of opinion, or one who reflected less the great position which he occupied. Had he met people who did not know who he was they would never have suspected from his manner or words that this was one who had achieved the extraordinary in life. It was most extraordinary, for here was the son of a faithless, corrupt judge, publicly disgraced in a great scandal. Most men, would have chosen another profession and gone elsewhere–to Idaho, Montana, Arizona, Canada–to start anew. Not Benjamin Cardozo. He stayed right in New York and by his high character, his surpassing ability, his scholarship, and his devotion rose to become the chief judge in his own state and then a Supreme Court Justice–"one of the nine old men," he called himself with a wistful smile. That was a gibe from which he and Brandeis should always have been excepted. There was nothing old or static about his mind.
And this great, truly noble man was a Jew–a Jew, proud and unashamed. Descendant of the aristocratic Portuguese group, he was as true and as loyal an American as ever lived, yet he never failed to recognize his kinship with the lowly, the ignorant, the backward of the Jewish people, even as did the Master himself.
None the less, the bitterest disappointment of his last years was, I believe, that with the coming of that bestial persecution, torturing, and murdering of Jews in Germany and Austria and Poland the conscience of America did not speak out as clearly, as emphatically, as historically it has in the past–to our lasting glory. He recalled how Secretary of State Hay and President Theodore Roosevelt had denounced the Kishinev massacres in Russia, although not a single American citizen was harmed thereby in person or property. The great justice waited in vain for similarly burning and pointed official words, naming names and deeds and places. Where, he asked me, were the other descendants of the Abolitionists? Why were only three of us lifting our voices in protest? Why did I not do more? On these occasions I think his judicial ermine irked him, He would have liked to go forth into the market place and raise his voice to heaven. Probably it was not called for; by his own life and example he showed the world how fine a Jew could be and so often is, what tremendous contributions Jews can and do make to the common weal. What a crime it is against Christianity and all humanity to degrade and destroy a race that can produce such men, such pioneers in ethics and of the intellect, and so rare a soul as that of Benjamin Cardozo!