The Justice Who Wrote Plessy v. Ferguson Had Some Awful Ideas About Women Voting, Too

In 1896, the Supreme Court in Plessy v. Ferguson upheld the doctrine of “separate but equal,” which served as the legal justification for the ensuing decades of state-sanctioned discrimination and violence against Black people. In his opinion for the majority in Plessy, Justice Henry Billings Brown explained that laws requiring segregation do not violate the Constitution because they “do not necessarily imply the inferiority of either race to the other.”

If “enforced separation of the two races stamps the colored race with a badge of inferiority,” Brown wrote, that is “solely because the colored race chooses to put that construction upon it.”

Given that the Court decided Plessy by a vote of 7 to 1, I am not sure that Brown deserves 100 percent of the blame for the screeching racism that permeates it. But to the extent that anyone remembers Brown today, more than a century after his death, it is because of his opinion in that case. As a general rule, when you are the Supreme Court justice who wrote sentences like “if one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane,” history is not going to remember you as any less of a vile bigot just because a majority of your colleagues were also willing to sign their names to it.

A lesser-known fact about Brown is that in the years after his 1906 retirement, he had a bit of a second act in reactionary politics, this time as an outspoken opponent of the women’s suffrage movement. If his diary is any indication, this had been a private hobbyhorse for Brown for decades, even before his appointment to the Court. “Came down after dinner to a woman’s suffrage convention and heard some viragoes talk,” he wrote on November 30, 1869, using an archaic term for a loud, overbearing woman. “Returned disgusted.”

After stepping down from the Court, though, Brown was at last able to pursue his passion project on a full-time basis. In 1910, he outlined his case against women’s suffrage at length in a speech delivered to the Ladies Congressional Club of Washington, D.C. (Talk about a failure to read the room.)

Other than the vocabulary, Brown’s speech could easily have been ripped from someone in the Andrew Tate extended universe. There are casual references to women as the “natural spenders” of their husbands’ money, and to “housekeeping” as their “natural vocation.” There are earnest discussions of men’s ability to maintain a “dispassionate view of important questions,” and the powerlessness of women to think critically “once an opinion is formed.” At one point, Brown argued that if women really wanted the franchise, the “natural chivalry of men would rally to their support” and “cheerfully concede.” The fact that women did not already possess the right to vote, he concluded, was thus proof that they were “generally content to leave the more serious questions of bread-winning and of government to the male sex.”

Brown wrapped by reassuring his audience that he was “still an admirer of the ideal woman of history and romance,” and encouraged them to emulate, among others, Andromache, the wife of Hector in Greek mythology. There is probably not a better illustration of the sexist brain than denying women rights while instructing them to try to be more like a fictional character.

In maybe the speech’s grimmest passage, Brown explained his philosophical opposition to extending the franchise not only to women, but to any “large classes who have not heretofore enjoyed it.” The gradual expansion of voting rights from white men who own property to white men who can read to all white men, he said, is “so near an absolute failure that the most important political question now confronting us is how to get rid of it without sacrificing the principle of self-government.”

Brown also pointed to the Fifteenth Amendment, which Congress ratified in 1870 to ban racial discrimination in voting, as an experiment gone awry. The fact that “the amendment has been generally disregarded in the South” was something of a relief, he said, since any “serious attempt to enforce it…would probably have resulted in another Civil War.”

Maybe it should not be any great surprise to learn that the author of Plessy v. Ferguson was not particularly enthusiastic about the Reconstruction Amendments. Even so, it absolutely sucks to read a Supreme Court justice—a person who was in theory responsible for safeguarding the rights the Reconstruction Amendments protect—publicly refer to the enfranchisement of Black Americans as “unwise” and “radical,” and to cite the government’s choice not to enforce the Fifteenth Amendment in the South as proof of the folly of extending the franchise any further.

Unfortunately for Brown, who died in 1913, all of his freelance misogyny went for naught, as women received the right to vote when Congress ratified the Nineteenth Amendment seven years later. Hopefully, Brown’s failure will serve as a cautionary tale for Samuel Alito, and persuade him to spend his eventual retirement puttering around the garden like everyone else.

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