(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
