Cardozo on Judge-Made Law

Sonia Sotomayor demurred, of course, when asked by a member of the Senate Judiciary Committee which justice on the current Supreme Court she would be most like or most admired. She then volunteered that a justice of the past she admired and would try to emulate was Benjamin Cardozo, perhaps because he is one of the most well-known jurists from Sotomayor’s home state of New York.

Cardozo, a Democrat, was nominated to the Court by Republican President Herbert Hoover. Cardozo’s nomination is often said to have been one of the few not motivated by partisanship or politics. He was confirmed by the Senate on a voice vote. He is more known for his landmark decisions on New York’s highest state court than on the U.S. Supreme Court, because he died after only six years on the Supreme Court at the age of 68. He had served on New York’s high court for 18 years, six of them as Chief Judge.

If Sotomayor said one time that judges don’t make the law, she said it a hundred times during her recent confirmation hearings. Here’s what Cardozo had to say:

“I take judge-made law as one of the existing realities of life.” 

Today, that would be a landmark, refreshingly honest, statement by any nominee to the Supreme Court.