Brown, Henry Billings (b. South Lee, Mass., 2 Mar. 1836; d. Bronxville, N.Y., 4 Sep. 1913; interred Elmwood Cemetery, Detroit, Mich.), associate justice, 1890–1906. Brown was the son of a prosperous New England businessman. He graduated from Yale University, read law, and received some formal legal training at Yale and Harvard. Migrating to the Great Lakes port of Detroit, Michigan, in 1839, Brown specialized in admiralty law. He married the daughter of a wealthy lumber trader, and an inheritance from his father‐in‐law made Brown's family financially independent. Following brief service as a Republican appointee to the county circuit court, he enjoyed a flourishing practice. Brown also taught law, unsuccessfully sought nomination for Congress, and delivered occasional papers and addresses. He shared private practice with duties as assistant U.S. attorney and in 1875 was appointed to the U.S. District Court for the Eastern District of Michigan. On that bench Brown became nationally known for his admiralty opinions. Benjamin Harrison in 1890 appointed him to the U.S. Supreme Court, a goal Brown had cultivated through political and social contacts. He remained on the Court until failing eyesight forced his retirement.

A generally moderate justice, Brown was highly protective of property rights and was reluctant to extend criminal procedural protections and civil liberties. His concurrence with the Court's opinion in Lochner v. New York (1905), which struck down a maximum work hours law, showed his general unwillingness to support the police power when it seriously interfered with business. A social Darwinist, he emphasized individual responsibility for economic decisions and personal conduct, no matter how harsh the consequences for the individual. He did, however, vote to uphold the federal income tax in Pollock v. Farmers' Loan & Trust Co. (1895), showing some flexibility under changing social conditions. As a judge, he employed a rather mechanical jurisprudence, strictly applying precedent to facts in a formulaic manner.

A usually careful, cautious legal technician and a capable justice, Brown had no transcendent judicial philosophy; he has been markedly forgotten, or when remembered, vilified for authoring the Court's opinion in Plessy v. Ferguson (1896), a 7‐to‐1 decision upholding state‐mandated racially segregated railway cars. Plessy's separate but equal doctrine provided a constitutional foundation for discriminatory “ Jim Crow” laws in the United States until the mid‐twentieth century.

Brown, a privileged son of the Yankee merchant class, was a reflexive social elitist whose opinions of women, African‐Americans, Jews, and immigrants now seem odious, even if they were unexceptional for their time. Brown exalted, as he once wrote, “that respect for the law inherent in the Anglo‐Saxon race.” Although he was widely praised as a fair and honest judge, Plessy has irrevocably dimmed his otherwise creditable career. Though some may argue that Brown bears personal guilt for the racial evils Plessy helped make possible, others respond that Brown was a man of his day, noting that the decades of de jure discrimination that came after Plessy merely reflected the zeitgeist.

Warmly regarded for his amiable character, Brown inspired real personal fondness in acquaintances. His diaries suggest a likable, modest, but ambitious man, personally conservative, frequently depressed, disinclined to sustained hard work, and often self‐doubting.

Bibliography

Robert J. Glennon, Jr. , Justice Henry Billings Brown: Values in Tension, University of Colorado Law Review 44 (1973): 553–604.

Francis Helminski

BROWN, HENRY BILLINGS

Henry Billings Brown was an associate justice of the Supreme Court from 1890 to 1906.

Born to a wealthy family on March 2, 1836, at South Lee, Massachusetts, Brown attended private schools as a child. His father, a prosperous merchant and manufacturer, saw to it that Brown attended Yale University, where he graduated in 1856. After graduation, Brown traveled in Europe for a year, then returned to study law at Yale and Harvard. In 1859 he moved to Detroit and in 1860 he was admitted to the Wayne County bar in Michigan.

Brown was appointed deputy U.S. marshal in 1861. Detroit at that time was a bustling Great Lakes port, and he became involved in the many commercial and maritime legal disputes that arose. Two years later, he was named assistant U.S. attorney for the Eastern District of Michigan. He held this post until May 1868 when he was appointed to fill a short-term vacancy on the Wayne County Circuit Court.

Recognized as the leading authority on admiralty law and maritime law, Brown lectured on the subjects at the University of Michigan Law School, and compiled and published Brown's Admiralty Reports. In 1890 President benjamin h. harrison appointed him to the U.S. Supreme Court. As a Court member, Brown gained a reputation as a moderate but was a staunch defender of property rights. He was reluctant to extend constitutional protection in criminal procedure and civil liberties disputes, and concurred with the majority in lochner v. new york, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), which struck down a statute calling for maximum work hours for bakers. Lochner was consistent with Brown's unwillingness to allow governmental interference with contractual freedom.

Brown also concurred in the so-called Insular cases, which held that residents of U.S. territories such as Puerto Rico are not entitled to constitutional protections. However, he departed somewhat from his usual strict adherence to judicial precedence when he voted to uphold the federal income tax in pollock v. farmers' loan & trust co., 158 U.S. 601, 15 S. Ct. 912, 39 L. Ed. 1108 (1895).

Brown is perhaps best remembered as the author of the Court's opinion in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256, the 1896 decision upholding state-mandated racial segregation in railway cars as long as the accommodations were equal. The "separate-but-equal" doctrine pronounced in Plessy became the constitutional foundation for jim crow laws and racial discrimination, particularly in the South. Later opinion condemned the Plessy decision, and indeed Brown has often been criticized for his role in it; however, the decision must be viewed in the historical context in which it was written. Also, the language in Plessy, requiring equality of treatment, later became the basis of legal challenges to segregation laws.

"The underlying fallacy of the plaintiff's argument [rests] in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority."
—Henry Brown

Failing eyesight forced Brown to retire from the bench in 1906. He died in 1913.

further readings

Schwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford Univ. Press.

Tribe, Laurence H. 1985. God Save This Honorable Court. New York: Random House.

cross-references

Labor Law; Brown v. Board of Education of Topeka, Kansas; Equal Protection.