Henry Billings Brown wrote hundreds of decisions during his 31 years as a federal judge, but he is remembered for only one, the Plessy v. Ferguson ‘separate but equal’ decision of 1896.
Plessy v. Ferguson upheld the constitutionality of state laws that required racial segregation in public transportation. It established the doctrine that justified Jim Crow laws. It erased progress made toward racial equality during reconstruction.
Critics said the decision would be as notorious as the Dred Scott decision, which said African-Americans could not be American citizens and could not sue in federal court. The critics were right.
Justice Brown wrote the majority opinion in the 7-to-1 Plessy v. Ferguson decision.
Henry Billing Brown was born in Lee, Mass., on March 2, 1836, the scion of a New England merchant family. He graduated from Yale, earning his B.A. at 20. Chauncey Depew, the future railroad lawyer, roomed across from Brown at Yale. Depew remember him as having “a feminine quality which led to his being called Henrietta, though there never was a more robust, courageous and decided man in meeting the problems of life.”
Brown studied law at Harvard and Yale, then moved to Detroit and specialized in admiralty law. In 1864 he married Caroline Pitts, the daughter of a wealthy lumber merchant. When his father-in-law died, he was financially secure enough to accept a federal judgeship in 1875. President Benjamin Harrison appointed him to the U.S. Supreme Court in December 1890.
One of his friends commented the appointment “shows how a man without perhaps extraordinary abilities may attain and honour the highest judicial position by industry, by good character, pleasant manners and some aid from fortune.”
Six years later, Henry Billings Brown would write the Plessy v. Ferguson opinion. In it, he wrote,
We consider the underlying fallacy of the plaintiff’s argument 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.
Justice John Marshall Harlan wrote a scathing dissent, in which he argued,
…in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.
Should Brown be blamed for perpetrating the evils of Jim Crow? Some say no, that he was a man of his day. They argue the decades of segregation that followed would have happened anyway until they were repudiated in Brown v. Board of Education in 1954:
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.
Henry Billings Brown died on Sept. 4, 1913.