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Brown, Henry Billings

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Birth: March 2, 1836, South Lee, Massachusetts.

Education: Yale University, A.B., 1856; studied briefly at Yale Law School and Harvard Law School.

Official Positions: U.S. deputy marshal for Detroit, 1861; assistant U.S. attorney, 1863–1868; circuit judge, Wayne County, Michigan, 1868; federal judge, Eastern District of Michigan, 1875–1890.

Supreme Court Service: Nominated associate justice by President Benjamin Harrison, December 23, 1890, to replace Samuel Miller, who had died; confirmed by the Senate, December 29, 1890, by a voice vote; took judicial oath January 5, 1891; retired May 28, 1906; replaced by William H. Moody, nominated by President Theodore Roosevelt.

Death: September 4, 1913, Bronxville, New York.

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Henry Billings Brown
Noteworthy Opinions

Henry Billings Brown

We consider the underlying fallacy of the plaintiff's argument,” wrote Justice Henry Billings Brown for the majority in Plessy v. Ferguson (1896), to consist in the assumption “that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” In this opinion, Brown's most famous and infamous, can be detected the intellectual and social assumptions of the late nineteenth century.

Born into an upper-middle-class family in South Lee, Massachusetts, educated at prep schools and Yale College, and trained in law through apprenticeship and study at the Yale and Harvard law schools, Brown personified the dominant class of his time. As a man of ability, a lawyer of talent, and a judge for his era, Brown was a justice who could forthrightly say that separation did not imply the inferiority of blacks. He also, however, demonstrated flexibility in his judicial thought, as he did in cases such as Pollock v. Farmers' Loan & Trust Co. (1895) and Holden v. Hardy (1898).

Before joining the Court, Brown lived and worked in Detroit, Michigan. In 1860 he became a deputy U.S. marshal and soon became acquainted with the work of the federal district court in Detroit. Because of the court's location on Lake Erie, he became knowledgeable in admiralty issues. In 1863 President Abraham Lincoln appointed Brown an assistant U.S. attorney, a position he held until 1868 when he received appointment to the Wayne County circuit court. He lost his bid to be elected to that court and entered private practice. In 1875 President Ulysses S. Grant appointed Brown to the U.S. District Court for the Eastern District of Michigan, his bench for the next fourteen years.

As a federal district judge, Brown became noted for his grasp of technical issues and admiralty law. One historian has argued that Brown was “a lawyer's judge,” that he disciplined himself to “carefully analyze complex factual situations.” This quality of Brown's jurisprudence meant that although he could master the issues and rules in dispute, he was not intellectually disposed to establish new directions for judicial and public policy, as can be seen in Plessy, in which Brown validated existing discrimination. Using careful planning and politicking, Brown sought a Supreme Court position, and in December 1890, on the death of Justice Samuel Miller, President Benjamin Harrison appointed him to the Court.

Brown disposed of his share of the routine business of the Court. Because of his knowledge of the lower federal courts, he often decided cases involving the calculation of fees for lower federal officials and the payment of federal fines, as in, for example, Massachusetts Benefit Association v. Miles (1891) and United States v. Kingsley (1891). He also wrote the usual spectrum of minor cases, such as Cope v. Cope (1891), resolving a conflict of laws question, and Barbed Wire Patent (1892), resolving the tangled barbed wire controversy on behalf of Joseph Glidden. In addition, because of his admiralty knowledge, Brown often wrote the decisions regarding shipping, such as The Oregon (1895).

Although Brown brought important skills to the Supreme Court, what most informed his approach to judging was his background and the dominant intellectual assumptions of his era. Brown viewed the world from a white, male, upper-middle-class perspective that embraced social Darwinism. This view of society held that certain groups had achieved social and economic prominence because, through “natural selection,” they had proven to be the most “fit.” In the late nineteenth century America's dominant groups eagerly adopted this ideology, first, because it justified their control of society, and second, because the theory made it appear as though their dominance was “natural”; therefore, any attempt to ameliorate the social or economic conditions of “lesser” peoples or races was not only wrong-headed and unscientific, but unnatural.

Although Brown shared these ideas and assumptions, he was not always prepared to press the law into those intellectual channels. For example, when the Court invalidated the income tax in Pollock, Brown dissented. He might have been expected to decide that the tax was a taking from the worthy and a redistribution to the unworthy (as the majority did), but Brown disagreed. Instead, he argued that the income tax was a common instrument used throughout the world as a basis for supporting governments, and by striking down the proposed income tax the Court had surrendered to the fears of the “moneyed class.” Brown would have upheld the tax as an appropriate government policy.

In Holden v. Hardy, which involved Utah's regulation to protect men in the dangerous occupation of hard-rock mining, Brown upheld the power of the states to use their police power to protect workers' health and safety. Although the Supreme Court had already built the judicial doctrine of substantive due process as a device to overturn state legislation that interfered with private property rights, in Holden, Brown carved out a protected class of persons the states could legitimately legislate for—male miners. In cases such as Holden, Brown emphasized that the judicial test of a state's statute was whether it was “an exercise of reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression, or spoliation of a particular class.”

In Plessy, Brown relied on the reasonableness of the equal but separate doctrine in ruling in favor of Jim Crow railroad cars. In fact, the decision in the case so mirrored the spirit of its times that its announcement failed to generate any controversy. As historian Charles A. Lofgren, the most careful student of this case, has demonstrated, Brown's decision in Plessy, although poorly crafted, reflected the era's racial, social, and legal assumptions. Most whites believed that blacks were an inferior race, and, therefore, even if the Thirteenth and Fourteenth Amendments may have established a rough legal equality between the races, those amendments certainly did not establish social equality. So, if the state of Louisiana separated the races on railroad cars, not only was it free to do so without violating any black rights, but such a policy was also a “reasonable regulation” and a valid use of the state's power. If blacks took offense at the separation, in Brown's thinking, it was because blacks were inferior; they failed to understand the true purpose (and benefit for both races) of separation. “If one race be inferior to the other socially,” he explained, “the Constitution of the United States cannot put them on the same plane.”

Justice John Marshall Harlan disagreed with Brown's opinion, writing a dissent that remarkably foreshadowed the Supreme Court's reversal of Plessy nearly a half-century later in Brown v. Board of Education (1954). Harlan's was practically the only voice in the country—and the only judicial voice—opposing racial segregation. Plessy may offend the sensibilities of modern readers, but it is a testament to the changing values of the country and an example of how American law conveys those values into public policy. Although Brown is often censured for his opinion in Plessy, perhaps he was guilty only of being a “reasonable” American in the Gilded Age.


On Brown and especially the Plessy case, see Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987). Also see Joel Goldfarb, “Henry Billings Brown,” in Friedman and Israel, Justices, vol. 2, 1553; and Robert J. Glennon Jr., “Justice Henry Billings Brown: Values in Tension,” University of Colorado Law Review 44 (1973): 553.

Noteworthy Opinions

Pollock v. Farmers' Loan & Trust Co. II, 158 U.S. 601 (1895) (Dissent)

Plessy v. Ferguson, 163 U.S. 537 (1896)

Holden v. Hardy, 169 U.S. 366 (1898)


Document Citation
Brown, Henry Billings, in Biographical Encyclopedia of the Supreme Court 89 (Melvin I. Urofsky ed., 2006),
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