Brown, Henry Billings (1836–1913)

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BROWN, HENRY BILLINGS (1836–1913)

Henry Billings Brown served on the Supreme Court from 1890 to 1906. During that period, he wrote more than 450 majority opinions and dissenting or concurring opinions in some fifty other cases, many of which had contemporary and historical significance. Justice Brown's jurisprudence revealed some hesitance, some ambivalence, even contradiction as he struggled to perform the judicial function.

The glorification of private property and free competition reflected one dimension of Brown's thought. He considered the right of private property "the first step in the emergence of the civilized man from the condition of the utter savage," and he joined the majority in lochner v. new york (1905), striking down a state law that limited the hours of bakery workers to a maximum of sixty per week or ten per day. Yet Brown usually construed the state police power broadly and sanctioned legislative modification of laissez faire principles. In holden v. hardy (1898) Brown upheld Utah's maximum hours act for miners, rejecting arguments that the state had violated the contract clause and denied property without due process. He looked realistically at the disparity in bargaining position between employer and employee, recognizing that fear of losing their jobs prompted laborers to perform work detrimental to their health. Concern for public health and inequality of bargaining power justified the state regulation.

pollock v. farmers ' loan & trust co. (1895) also revealed Brown's willingness to permit legislative regulation of private property. When the Court struck down a congressional tax on incomes, Brown eloquently dissented, protesting that the decision ignored a century of "consistent and undeviating" precedent and represented "a surrender of the taxing power to the moneyed class." Although opponents of the tax had raised the specter of socialism to dissuade Congress from raising funds, Brown construed Pollock as "the first step toward the submergence of the liberties of the people in a sordid despotism of wealth."

Brown supported the gradual development of federal power as a necessary concomitant to a modern industrial economy. He also wrote many of the Court's admiralty opinions, broadly interpreting federal jurisdiction and the scope of federal maritime law. Brown similarly endorsed an expansive federal power under the commerce clause, joining, for example, Justice oliver wendell holmes ' classic statement of the stream of commerce doctrine in swift & co. v. united states (1905).

Brown's criminal procedure and civil liberties opinions reflected the general attitude of late nineteenth-, early twentieth-century America toward criminals, blacks, and women. In brown v. walker (1896) he held that the Fifth Amendment right against self-incrimination was not violated if the state coerced testimony and afforded immunity from criminal prosecution. Social disgrace and ridicule might result from invoking the Fifth Amendment, but a "self-confessed criminal" did not deserve protection from his neighbors' negative judgment.

Brown's callousness to civil rights is manifest in one of the most infamous decisions of the nineteenth century—plessy v. ferguson (1896). For the Court, Brown upheld a Louisiana statute requiring railroads to provide "equal but separate accommodations" for "white" and "colored" patrons. In a remarkably disingenuous opinion, he reasoned that the statute had "no tendency to destroy the legal equality of the two races" and did "not necessarily imply the inferiority of either race to the other." Brown rejected a Fourteenth Amendment equal protection challenge, citing as precedent state cases decided prior to passage of the fourteenth amendment. To Brown the Louisiana law was a reasonable legislative decision consistent with "the established usages, customs and traditions of the people." In other words, Brown conceived civil rights as adequately protected in the legislative process; he did not envision civil rights as enforceable by a minority against the majority. Plessy mirrored the late nineteenth-century's belief in physical and social differences between the races. Contemporary scientific and social science thought considered the Negro and Caucasian races as biologically separate and the Caucasian race as superior. In Plessy, Brown constitutionalized the prevailing prejudices of his era.

Robert Jerome Glennon
(1986)