Justice Cardozo: One-Ninth of the Supreme Court

MILTON HANDLER and MICHAEL RUBY

Editor's Note: This article originally appeared in the Cardozo Law Review, Volume 10, October/November, 198& Milton Handler is a Professor Emeritus of Law, Columbia University. Michael Ruby, his grandnephew, has adapted this article from an oral history with Professor Handler. Portions of this text expand on themes addressed in an earlier work. See M Handler, Benjamin N. Cardozo, in Twenty-Five Years of Antitrust 1271 (1973).

Part I

As a young professor, I had the privilege of gaining some glimpses into the private life of Justice Cardozo. I knew him slightly in the latter years of his tenure on the New York Court of Appeals, and more intimately after he moved from New York to spend the last years of his life in Washington. He was a self-effacing man, jocularly referring to himself as ''one–ninth of the Supreme Court,'' but much to my surprise this trait did not govern his debut on the Court--a landmark civil rights decision. His second opinion, an antitrust ruling handed down on the same day, presents a judicial mystery that I will endeavor to solve after giving my impression of the Justice.

My first contact with Cardozo came when I was in my third year at Columbia Law School, where he was worshipped by my generation of law students. We eagerly read his every opinion, not only those that adorned the various casebooks that we studied, but also those that he was handing down at the time as a member of the Court of Appeals. In my capacity as the book review editor of the Columbia Law Review in 1926,1 had the temerity to invite him to review a work on legal philosophy. This was the beginning of a correspondential relationship.

Four years later, after I had embarked on my teaching career, I discovered an opinion by Judge Barrett, a New York jurist in the 1890s, while putting together a chapter on trademarks for a casebook on trade regulation. The clarity and brevity of the one-page ruling impressed me as an example of the art of opinion writing, of which Cardozo had written in his Law and Literature.[1] I used the opinion in class in the mimeograph edition of my casebook to indicate how the analysis of a trademark controversy could be stated in a few paragraphs, and sent a copy of the ruling to Cardozo with my comments. The Chief Judge promptly responded that it "brings back reminiscences of my youthful days when I heard him dictate opinions almost equally precise and graceful."[2]

Later that year, I was called upon to assemble a list of legal classics for incoming students to read during the summer before their first term. I included Cardozo's The Nature of the Judicial Process among titles by Gray, Ames, and Holmes, whom Cardozo revered and would soon succeed on the Supreme Court. I forwarded the list to Cardozo, whose response was a study in shifts of tone:

The Chief Judge began in an avuncular tone and concluded rather humbly. In between, he expressed the practical man's ambivalence toward legal philosophy, denigrating it as "idle chatter," and then proceed to justify the enterprise in the same sentence.

When President Hoover nominated Cardozo to the Supreme Court on February 15, 1932, everyone at Columbia was overjoyed. I knew from experience that the appointment was the result of years of effort on the part of Cardozo's admirers. When I had clerked for Justice Stone in 1926, he related to me the circumstances of his own recent appointment by President Coolidge. The tale disconcertingly featured Cardozo.

When Justice McKenna retired in 1924, Coolidge summoned Stone, his Attorney General and former classmate at Amherst, to obtain advice on whom he should appoint as the successor. According to Stone's account, Coolidge said, "I regard this as an important responsibility of the Presidency and would welcome your suggestions. Think about it for a while." "Mr. President," Stone said, "I can present my recommendation right now. I don't have to give it any thought." "Whom do you have in mind?" "Benjamin Nathan Cardozo, the outstanding jurist of our times." "Isn't he a Hebrew?" the President asked. "Yes, but in my view, that's irrelevant." "Well, we have one Hebrew on the Court now, Brandeis, and I don't believe that I would want to be the one to add another," Coolidge concluded. Then Coolidge turned to Stone and asked, "what about my appointing you?" "Mr. President, I cannot be considered in the same breath as Cardozo. He has every attribute of judicial greatness. I possess nothing comparable. You would be appointing someone much inferior to Cardozo." Coolidge said nothing and Stone continued: "You know, Mr. President, I've had an academic career. I retired from the deanship and went into private practice. Lo and behold, I wasn't in practice for a year when you appointed me Attorney General. At that time, I indicated that I would take it only for a limited period, because I really am anxious to get back to New York." "Still," Coolidge said, "I want you to consider this, please take it up with Agnes and let me know your decision." After discussing it with his wife, Stone, as might be expected, accepted the appointment.[5]

Stone also told me that a few years before that, as Dean of Columbia Law School, he had recommended Cardozo to President Harding, who chose Pierce Butler. A few years afterward, Stone recommended Cardozo as President Hoover's first appointment, which went to Owen J. Roberts. When Hoover was about to make his second appointment, Stone recommended Cardozo for the fourth time. While "Stone does not appear to have been 'in' on the decision," according to the definitive account of Cardozo's appointment, "his opinion doubtless carried some weight with Hoover."[6]

I joined the chorus of well-wishers after Cardozo's prompt confirmation by the Senate, but I could not help wondering how he would adjust to the shift from being New York's much admired Chief Judge to being the freshman Justice on the High Court. I wrote Cardozo that, on the basis of Stone's experience as the junior Justice, he should expect that many of the cases assigned to him would be relatively unimportant, unlike the significant questions with which he dealt in his Court of Appeals decisions. I also offered to apprise his clerk of some aspects of a Supreme Court Justice's work with which he might not be entirely familiar. At the end of each term of the Court, outgoing clerks break in incoming ones, and I had something of the sort in mind. Cardozo responded:

Cardozo's legal secretary, as clerks were then called, contacted me a week later. He was a middle-aged man by the name of Joseph Paley who had worked for Cardozo since 1918 and who would accompany the new Justice to Washington until the completion of his first term. Thereafter, Cardozo emulated many of his colleagues by annually selecting a third-year law student as his clerk.

At a luncheon at the Men's Faculty Club at Columbia, I reviewed with Paley the many ways in which the Supreme Court and the Court of Appeals differed in the conduct of business. I outlined the work of a Supreme Court clerk and touched on some of the problems a new Justice might face, such as the preponderance of mundane cases likely to be assigned to him. Paley said that Cardozo was not concerned that the issues in a case might appear trivial, because in Cardozo's view a great judge could find a question meriting innovative treatment even in the most humdrum cases, thus echoing what he had written in Law and Literature.[8] Although I was28 years old at the time, and no fountain of wisdom, I was dubious. I remembered how few interesting cases had come Stone's way during my year with him.

When Cardozo took his seat on March 14, 1932, I was curious to see how he would exercise his right, as a new Justice, to choose the first case for which he would write the Court's opinion. Thereafter, as is well known, all assignments are made by the Chief Justice, or by the senior Associate Justice if the Chief Justice is not part of the majority. I had a theory that if you wanted to ascertain a new Justice's personality, you should study his first opinion. If he selected something so unimportant that it would not be noticed, you could take it as proof of modesty; if he selected a blockbuster, you could take it as evincing a certain self-confidence, self-importance, and perhaps even arrogance. Stone, for example, chose an absolutely trivial case, because he did not want his first opinion to receive any notice.[9] I thought that Cardozo, who was shy and self-effacing, would assign himself something quite unimportant. To my surprise, and as proof that my amateur psychoanalysis was completely unfounded, he took a 5-4 decision that made the front pages of newspapers across the land.

The new Justice delivered his first batch of opinions on May 2. The case that made the headlines, Nixon v. Condon,[10] struck down a Texas statute that gave the State Executive Committee of the Democratic party the authority to bar black citizens from voting in primaries, which were tantamount to election in that heavily Democratic state. While Cardozo handed down five other opinions that day, a look at the dates on which the cases were argued shows that Nixon had to be his first opinion.

Of the five other cases, one was argued on March 17 and 18, and the others on April 14 and 15. Nixon, however, was argued on January 7 and then reargued on March 15--the day after Cardozo took his seat. Since this was aS-4 decision, it would appear that the Court split right down the middle after the first argument. With a new Justice appointed, Chief Justice Hughes put the case on the calendar for argument on the day after Cardozo was sworn m. As Cardozo was the swing and controlling vote, it would only have been natural for the Chief Justice to have assigned the opinion to him. Nonetheless, Cardozo had the right to choose his first case, and thus might have refrained from selecting what was certain to be a landmark ruling in favor of something less conspicuous.

Notably, Cardozo's ruling was a very narrow one, hinging on a technicality. He maintained that the Executive Committee did not have the authority to bar black voters, because "[w]hatever inherent power a State political party has to determine the content of its membership resides in the State convention,"[11] and not in the Executive Committee. Since the Committee derived its power from the state enactment and not from the party convention, the exclusion of the black voters was the act of the state of Texas and not of the party. Cardozo hardly addressed the state's position "that a political party is merely a voluntary association" with "inherent power like voluntary association generally to determine its own membership."[12] Ducking the issue, he wrote:

After Roosevelt's election later that year, I had the opportunity to gain a more intimate view of Cardozo. A couple of days before the inauguration on March 4, Rex Tugwell called me and said that he was going to be the "number two" man in the Department of Agriculture under Henry Wallace. He wanted me as the "number three" man to help him in the field of food and drug regulation, which we were keen on strengthening. I researched the job and found that it also included such uninspiring matters as supervising the army of lawyers who negotiated the acquisition of land for the construction of roads. Skeptical about the post and newly married, I decided to go down to Washington to investigate the matter further with Tugwell and Wallace. I also resolved to seek the counsel of Stone, Brandeis, and Cardozo.

I visited Tugwell at the Department of Agriculture in the first days of the new administration. He was sitting at a large desk with a pile of documents in front of him. As he was telling me about the position and the Department's lofty goals, he was signing the papers one by one. When he finished with them, a clerk came in with a wheelbarrow filled with more papers. Tugwell, talking all the time, set to work on these. Finally, I said, "Rex, what are you doing?" "The law requires that everything that goes out of this department be signed by the Secretary. I'm the Acting Secretary. The moment you come here, you're going to be the Acting Secretary."

Nonplused by his remarks, I went to see Brandeis. The 76-year-old Justice brushed aside my reservations, saying: "This is going to be the most active department in the new administration. With Wallace and Tugwell, the fur is going to fly and it will be a place of great intellectual excitement."

I went to Cardozo next, who took the opposite tack. "You're like me," he said, "you're born and bred in the streets of New York. This isn't intellectually challenging. You should stay a professor, or become a judge." Finally, I visited Stone, who urged a middle course, saying: "If you want to come to Washington, I'll speak to some people and get you something more in line with what you've been doing." In the end, I took Cardozo's advice and stayed in New York, but I also agreed to draft the food and drug reform bill for the "100-day" session. The legislation, which encountered furious opposition from the affected industries, was not enacted until 1938, and then only in a watered down form.[14]

By the summer, I regretted following my own and Cardozo's instincts. At Raquette Lake in the Adirondacks, I read in the newspapers almost every day about the agencies being set up to administer the New Deal programs. I naively thought that every one of our social and economic problems was about to be solved, and that nothing would be left for my generation to accomplish in the future. So I made some inquiries and was invited by Senator Wagner to come down in October to serve as General Counsel to the National Labor Board, the prototype for the National Labor Relations Board.

In the year that I lived in the capital, I called on Cardozo a number of times. The Justice, a bachelor in his early sixties, lived at 2101 Connecticut Avenue, an elegant apartment house still standing near the bridge over Rock Creek park on the way to the Shoreham Hotel. His apartment was spacious and exquisitely furnished, with a study, which doubled as Cardozo's chambers, next to the living room. This was before the erection of the Supreme Court building, when most of the Justices had no official chambers and did their work at home.

Cardozo, like many other shy people, could be very loquacious with visitors. It was clear from everything he said that he was lonely and unhappy. He missed New York, where he had resided harmoniously with his older sister until her death, and felt uprooted living in Washington, where he lacked the companionship of his old friends and felt too old to make new ones. He declined almost all formal dinner invitations, not merely because of their general dullness, but because he was always placed next to some venerable widow.

On the Court, he felt somewhat overshadowed by Brandeis and Stone, men of affairs whose greater experience better equipped them for the problems of statecraft with which the Supreme Court deals. He indulged in the affectation that he did not care overmuch for the work of the Court, and was wont to say that all that counted was a Justice's vote--not his persuasiveness, industry, scholarship, or wisdom. Cardozo was merely "one-ninth" of a High Court dominated by an old-line majority that would endeavor to throttle the state and federal efforts to cope with the Depression.

His tenure on the Court of Appeals had been in marked contrast. Instead of being the junior member of the Supreme Court, he had been surrounded by disciples who looked up to him as a master, especially after he became Chief Judge. Instead of working in relative isolation, he had spent the two weeks of each month that the Court of Appeals was in session with his fellow judges at an Albany hotel. They would discuss cases over breakfast, lunch, and dinner in monastic seclusion, free from distraction and interference. According to the recollections of two of his Supreme Court clerks, he was even nostalgic for the cases he had handled on the New York tribunal.[15]

During one of my visits, the Justice described his unusual method of opinion writing. As soon as a case was assigned to him, he would work day and night with hardly any food or sleep until the opinion met his exacting standards. I said to him, "But you must realize, Mr. Justice, that there will always be another case to which you will have to turn."

"I well realize that," he said, "but that is my nature, to give myself over to my work." I knew that there could be no rest in his life, because as soon as he had expended himself on one case, he would plunge into another.

Cardozo returned my visits by paying several calls at the Westchester, an apartment hotel where I lived with my wife, Marion. On one occasion, he stopped by on a Sunday, when I was still in New York after giving my classes at Columbia on Friday afternoon and Saturday morning, when Marion and I returned late that afternoon, the receptionist at the Westchester handed us our mail and said, "A very distinguished-looking gentleman called to see you this afternoon. He left his card, which has a very funny first name." She handed it to me and it said, "Mr. Justice Cardozo."

It was customary in that era in Washington for visitors to leave cards when making a call. Mrs. Stone, for example, would go out some days in her chauffeured car with as many as 20 to 30 cards. She would drive to the embassies, to the homes of the Supreme Court Justices and Cabinet Secretaries, and to the White House. The chauffeur would hand the Stones' card to the butler of the establishment. Similarly, visitors would drive up to the Stones and deposit their cards, just to show that they were maintaining social relations between dinner parties, which the Stones attended practically every night. On one of their more low-key evenings, they invited Marion and me for dinner, which consisted of a turkey that weighed more than ten pounds. Although Marion and I were small and thin, the 290-ound Justice and Mrs. Stone were such terrific eaters that the four of us polished off the entire platter.

In due course, Marion called Mrs. Stone and said she would like to have a dinner party for the Stones, Cardozo, and Senator Wagner, who was a widower. "We go to so many formal parties," Mrs. Stone said, "so make it absolutely informal." New to Washington, Marion did not know what informal meant. "Do you mean black tie?" she asked. "No, just business suits," Mrs. Stone replied. I invited Cardozo and Wagner, whose staff called me half a dozen times to confirm how the Senator should attire himself. On the night of the party, Marion was wearing an ordinary dress and I had put on a business suit. Our distinguished guests started to arrive. The Stones appeared--he in white tie and she in an evening dress. Cardozo came in a tuxedo. Wagner's staff had settled on a funeral suit with striped pants and cutaway for the Senator. Only Marion and I, the hosts, had complied with Mrs. Stone's wishes.

Our apartment at the Westchester, with its rented furniture, was not palatial. It had a small kitchen and foyer, a living room, and a bedroom. We had set up a table in the foyer and Marion had engaged special help, whose loud voices were audible from the nearby kitchen. The food was truly inedible. To make matters worse, the fire alarms in the building went off during the meal. I stepped out to reconnoiter and ascertain whether there was any danger. After all, we were responsible for the lives of two Supreme Court Justices and a leading member of the Senate. I soon discovered that there was no danger and returned to the table for more unpalatable food. Fortunately, we had some good wine that could assuage our guests' thirst, if not their hunger.

After the disastrous meal, we repaired to the living room. Stone turned to Wagner at one point and said, "I'm curious to know, Mr. Senator, what is the constitutional theory on which the Administration is proceeding in the development of its comprehensive program of reform and reconstruction?"

The Senator from New York, who had imbibed a good deal, responded brashly, "Mr. Justice, our theory is very simple. If the program doesn't work, we don't care if your Court holds it unconstitutional. If the program does work, you wouldn't dare to declare it unconstitutional."

Breaking in at that point, Cardozo said softly, "If I were you, Mr. Senator, I wouldn't dare two-ninths of the Supreme Court of the United States."

After about a half hour, the Stones and Wagner rose and left together, no doubt with the intention of filling their empty stomachs. Cardozo, noticing that Marion was chagrined and very much upset, remained for several hours to help restore her equanimity. This was characteristic of the Justice. Drawing her out, he discovered that her master's thesis had been on colonial literature, and they discussed the works of John Cotton, Thomas Hooker, Cotton Mather, and other "builders of the Bay Colony," whose writings were just beginning to awaken interest after two centuries of neglect. Cardozo appeared to be fully familiar with that recondite field, as he was with all phases of English and American literature, to say nothing about his prodigious learning in philosophy and related fields. By the time he left, the night that should have been our moment of youthful triumph had been saved from utter catastrophe.

I can best end the first part of this memoir by quoting two passages from Chief Judge Lehman's A Memorial:

Part II

I will now turn to the judicial mystery that surrounds Cardozo's second opinion on the Supreme Court, United States v. Swift & Company, in which the Court overturned a District Court modification of the Meat Packers' Consent Decree. The original decree, entered in 1920, had broken up the meat packers' monopoly and enjoined them from engaging in a number of activities, including "manufacturing, selling or transporting any of 114 enumerated food products." Swift and Armour & Company filed a petition to modify the decree in 1930, arguing that changed conditions in the meat-packing and grocery business warranted alterations. The District Court in Washington rejected part of the petition, but permitted the meat packers to sell at wholesale the 114 grocery products. The Government appealed the decision to the Supreme Court.

The case was argued before the Court two days after Nixon, on March 17 and 18, and the decision was handed down on the same day as Nixon. Rejecting the modification, Cardozo spoke for a court of four--Justices McReynolds, Brandeis, Roberts and himself. Justices Butler and Van Devanter dissented. Chief Justice Hughes and Justices Sutherland and Stone took no part in the consideration and decision of the case. For many years, Cardozo's opinion was regarded as the fountainhead of all learning on the modification of consent decrees, with most subsequent rulings starting and ending with his formulation.

Long after the decision, when I was Chairman of the American Friends of the Hebrew University in the 1960s, Professor Prashker, the father of one of Stone's law clerks, donated the handwritten drafts of Cardozo's first two opinions, Nixon and Swift, to the University. There were numerous corrections and eliminations on the foolscap holographs. I deciphered the first few pages of both texts, which were not all that legible, checked them against the published opinions, and concluded that they were authentic final drafts. At a function of the Friends, I presented the documents to the President Justice of the Supreme Court of Israel, who turned them over to the Jewish National Library in Jerusalem.

Subsequently, when I was delivering an antitrust lecture in Chicago, I sat at the head table with Arthur Curtis, the Associate General Counsel of Swift. During dinner, I mentioned, in passing, the story of how I had obtained the handwritten draft of the Swift opinion for the Hebrew University. He asked whether he could procure a copy. I suggested that he write to the Jewish National Library. In 1970, he wrote to tell me that he had obtained the copy, and that to his amazement, he found that Swift had won in the handwritten opinion, whereas the company had suffered a total defeat in the ruling that was published in the United States Reports. He then sent me a typed copy that he had made of the handwritten draft.

Needless to say, I immediately compared the typed copy to the draft with the published opinion from beginning to end. As it turned out, the holograph was the final draft, but only for part of the opinion. The opening pages, which describe the 1920 decree, correspond word for word with the beginning of the printed opinion. At that point, the two texts briefly diverge. The published ruling inserts a paragraph and a half that criticizes the meat packers' efforts to have the decree vacated in 1924. Then the opinion returns to the point where it departed from the draft. The texts correspond word for word again for several pages that discuss the District Court's decision and affirm the power of a court to modify a consent decree. Finally, at the midway mark, the opinions go their separate and diametrically opposite ways.[20] At that point where the texts diverge for good, the draft frames the issue in this way:

Cardozo finds that one major event has intervened since the original decree was entered--"the monopoly, rampant in 1920, is lifeless today." He then describes the District Court's interpretation of the role of the prohibition on the sale of groceries:

Shortly afterward, returning to the role of the prohibition, Cardozo accepts the lower court's analysis:

The only reason for depriving the defendants of the power to sell groceries and kindred articles was to make it certain that the combination then uniting them would be broken up so completely that none of it would survive. The framework of the bill of complaint makes this plain, if it could otherwise be doubtful. The bill informs us that the attempted monopoly of substitutes for meat was conceived by the defendants after competition in meat itself had been effectually eliminated, the one form of combination being complementary to the other. At the time of the first decree excision of these substitutes was an appropriate measure, if an extreme one, whereby to make certain that the combination would be ground to pieces.

Cardozo goes on to weigh the objections raised against allowing the meat packers to deal in groceries:

From the standpoint of competition,

Finally the new Justice touches on changes in the grocery industry since 1920, when the meat packers had "special advantages" as a result of their "ownership of refrigerator cars." In the process, he portrays this country at the dawn of the present age:

These arguments, which would have saved the day for the defendants and which were cited injustice Butler's dissent, were discarded in the published opinion. Also discarded were some pearls of wisdom:

Instead of asking what has changed between 1920 and 1931 in the meat-packing and grocery businesses, he focuses on the meat packers' renunciation in the original decree.

Cardozo cites two reasons for the renunciation, and concludes that those reasons persist "with undiminished force today."[22] The first reason m 1920 was the meat packers' ownership of refrigerator cars, which put them

In his draft, Cardozo accepted this reasoning himself, arguing that a modification of the decree would increase competition in the grocery business. He also found that changed conditions had reduced the significance of the refrigerator cars.

More important, Cardozo changed his mind about the rationale for the renunciation in the original decree. In the draft, he viewed the prohibition on the sale of groceries as facilitating the demise of the meat monopoly. In the published opinion, Cardozo explicitly rejected this reading of the decree:

At this point, Cardozo returns to the issue of the meat packers' consent, the point where the draft and published opinion diverged:

At the very end of the opinion, Cardozo sounds this theme again:

Although Cardozo begins by affirming a court's "power to modify" a consent decree, he concludes by virtually withdrawing that right. The new Justice codifies this restriction near the end of the opinion in a passage that became the foundation for the Cardozo test on the modification of consent decrees:

I have sought desperately to solve the mystery of this 180-degree shift by the new Justice. I contacted Professor Andrew L. Kaufman of Harvard Law School, who is writing a biography of Justice Cardozo, to see whether there were any relevant documents in Justice Cardozo's papers that might shed some light on what transpired. Unfortunately, it appears that Cardozo's papers were either destroyed during his lifetime or after his death in 1938. At my request, Professor Kaufman checked the Brandeis archives at Harvard Law School--again to no avail. I was not surprised by the lack of results, because I knew from experience that Brandeis never had a secretary, wrote everything in longhand, and thus would not have retained any copies of his correspondence with other Justices.

What about the rest of the Court? Unfortunately, Cardozo's and Brandeis' docket books, which would reveal the original vote of the Justices in conference, no longer exist. As far as I know, the docket books of the four other Justices who sat on Swift have been devoured by time as well. Cardozo's handwritten draft contains no indication of any dissent, suggesting that originally all six Justices concurred in permitting the modification of the decree. If that be the case, four judges, including Cardozo, must have changed their minds to produce the 4-2 ruling against modification. Another possibility is that Cardozo and one other Justice had joined Butler and Van Devanter, the eventual dissenters, in the original decision. If Cardozo alone had joined them and the Court had voted 3-3 in conference, the District Court's modification would have been affirmed by a divided court and Cardozo would have never written the draft.

One can only speculate, but I suspect that Brandeis persuaded Cardozo to change his mind, for it was Brandeis who had rejected the first attempt by the meat packers to vacate the decree in 1928.[28] The defendants, represented by the future Chief Justice, Charles Evans Hughes, had sought to invalidate the decree on the basis of a series of highly technical and tenuous claims, all of which were summarily rejected in Brandeis' unanimous opinion. In addition, some of the language that made its way into Cardozo's printed opinion is quite harsh--more in keeping with Brandeis' style than Cardozo's.

As for the other Justices who voted against modifying the decree, McReynolds was not on speaking terms with Brandeis and was consistently unpleasant to Cardozo, but he was a firm believer in vigorous antitrust enforcement. Thus it is not difficult to understand why he would have gone along with the change. Justice Roberts' position is enigmatic and I have been unable to locate any material that would be enlightening on his original vote or on the vote that he cast in favor of the revised opinion.

The changes wrought by the revision have had a disastrous effect on the law governing the modification of consent decrees. Cardozo imposed a severe standard that rarely could be satisfied. As a result, changes in a decree, no matter how necessary or desirable, could not be obtained for a long time. I reviewed the applicable case law in Consent Decrees: Contracts, Judicial Act, Neither or Both.[29] The courts have struggled with the Cardozo standard and essentially have discarded it in recent decisions.[30] As for the meat packers, they tried again in 1960 to have their decree modified, and were again rebuffed.[31]Finally, in 1975, after most of the meat packers had either gone out of business or had lost out in the race against new competitors, the Government agreed to the abrogation of the decree.[32] The facts cited in the Cardozo draft have been proved

correct by the later economic developments, and the obstinate refusal of the Supreme Court to remove the fetters imposed by the consent decree has been proved unwarranted.

This opinion and Nixon shattered two presuppositions I had about Cardozo. This shy and self-effacing gentleman selected a blockbuster as his maiden effort as a Supreme Court Justice, and the author of The Nature of the Judicial Process failed in the published ruling to permit pragmatic considerations to overcome the anti-business ideology that characterized antitrust enforcements.

Endnote

1. B. Cardozo, Law and Literature and Other Essays and Addresses, in Selecting Writings of Benjamin Nathan Cardozo 339 (M. Hall ed. 1947).
2. Letter From Chief Judge Benjamin N. Cardozo to Professor Milton Handler (July 29, 1930) copy on file at Cardozo L. Rev.).
3. B. Cardozo, The Nature of the Judicial Process (1921).
4. Letter from Chief Judge Benjamin N. Cardozo to Professor Milton Handler (Nov. 23, 1930) (copy on file at Cardozo L. Rev.).
5. See Burlingham, Harlan Fiske Stone, 32 A.B.A.J. 322, 323 (1946), for an abbreviated account of Stone’s selection.
6. See Kaufman, "Cardozo’s Appointment to the Supreme Court," 1 Cardozo L. Rev. 23, 40-41 (1979).
7. Letter from Justice Benjamin N. Cardozo to Professor Milton Handler (Feb. 28, 1932) (copy on file at Cardozo L. Rev.).
8. See B. Cardozo, supra note 1, at 355 ("It is a false and cramping notion that cases are made great solely or chiefly by reason of something intrinsic in themselves. They are great by what we make of them.").
9. May v. Henderson, 268 U.S. 111 (1925) (summary proceedings in bankruptcy setting aside a payment to a favored creditor of the funds of the bankrupt.)
10. 286 U.S. 73 (1932).
11. Id. at 84.
12. Id. at 83.
13. Id. at 84.
14. Federal Food, Drug, and Cosmetic Act, ch. 675 sec. 1, 52 Stat. 1040 (1938) (current version at 2 U.S.C. sec. 301-92 (1982 & Supp. IV 1986)).
15. See Rauh, Siegel, Doskow & Stroock, "Recollections of Four Cardozo Law Clerks," 1 Cardozo L. Rev. 5, 16 (1979).
16. See B. Cardozo, supra note 1, at xvi.
17. Id. at xvii.
18. 286 U.S. 106 (1932).
19. Id. at 111.
20. Quoted portions of the handwritten draft are reprinted in the Appendix following the original version of this Article.
21. Id. at 115.
22. Id.
23. Id.
24. Id. at 116.
25. Id. at 116-117.
26. Id. at 119.
27. Id.
28. Swift & Co. v. United States, 276 U.S. 311 (1928).
29. See 2 M. Handler, Twenty-Five Years of Antitrust 931 (1973).
30. United States v. Motor Vehicle Mfrs. Ass’n 1982-83 Trade Cas. (CCH) Par. 65,175, at 71,653 (C.D. Cal. 1982); United States v. Carrols Dev. Corp., 1982; United States v. Carrols Dev. Corp., 1982-1 Trade Cas. (CCH) Par. 64,510 at 72,823-24 (N.D.N.Y. 1981); cf. United States v. Columbia Artists Management, Inc., 1987-1 Trade Cas. (CCH) Par. 67, 600, at 60,601 (S.D.N.Y. 1981).
31. United States v. Swift & Co., 189 F. Supp. 885 (N.D. Ill. 1960), aff’d, 367 U.S. 909 (1961).
32. United States v. Swift & Co., 1975-1 Trade Cas (CCH) Par. 60,201, at 65,700-06 (N.D. Ill. 1975).