LIVINGSTON, HENRY BROCKHOLST (1757–1823)

There is a modest puzzle regarding Henry Brockholst Livingston's more than sixteen years on the Supreme Court (1806–1823): why was he comparatively silent? Livingston, a New York Jeffersonian, was among the best qualified appointees ever named to the Court. Before his appointment to the New York Supreme Court in 1802, he was at the top of the legal profession, ranked as an equal of his frequent sparring mate, alexander hamilton. Livingston's opinions during his five years on the New York court demonstrated legal erudition, style, and wit. Some of his opinions are still required reading for law students. The New York reports indicate that Livingston had a constant urge to express his thoughts, and he was not only an extremely active dissenter but also constantly rendered seriatim opinions. In his four years of New York judicial tenure, Livingston dissented twenty times, concurred on fourteen occasions, and delivered twenty-four seriatim opinions. Those statistics only begin to indicate the battle on the New York court, largely between Livingston and james kent, both of whom were first-rate jurists. The business of the New York court involved many significant matters but few constitutional questions. Livingston's dissent in Hitchcock v. Aicken (1803) argued that the full faith and credit clause should be interpreted broadly; ultimately, the marshall court, including Livingston, agreed with this reasoning in Mills v. Duryee (1813).

In contrast to his active role on the New York court, Livingston was scarcely noticeable on the Marshall Court. In fifteen terms he dissented but three times and delivered only five concurring opinions. The fact that he had not shrunk from confronting some of the ablest judges in the country when on the New York court precludes any notion that he was overwhelmed by john marshall and associates. The difference in Livingston's roles on the state court and the Supreme Court is important largely for what it explains about the Marshall Court's constitutional jurisprudence. By the time of Livingston's appointment, Marshall's practice of having one Justice deliver a single opinion for the Court was settled. The Justices, moreover, willingly stifled their differences, save on questions of great moment, usually constitutional. Within this practice, the Justices' common values, regardless of party affiliation, normally made compromise possible. There are indications that Livingston initially had difficulty in adjusting to the ways of the Marshall Court. In the first few cases he heard, Livingston seemed particularly active in questioning counsel, as if he might have wished to dissent, but did not. Apparently, Livingston's policy preferences blended well with the Marshall Court's general mercantile orientation. While on the New York bench Livingston had served as a precursor for nineteenth-century instrumentalist judges who shaped the law to promote commercial development. In this respect, Livingston resembled a fellow Jeffersonian on the Court, william johnson. Because of the commercial atmosphere of his home community of Charleston, South Carolina, Johnson, like Livingston, had good reason for thinking as his brethren did on commercial questions. Johnson was even more nationalistic than Marshall. Unlike Johnson, however, thomas jefferson apparently did not attempt to goad Livingston into expressing his differences as he had done while a state judge. Another reason that Livingston did not join Johnson and make plural the "first dissenter" may have been that Livingston got along with the rest of the Court much better than Johnson did. When Livingston died, joseph story's rich eulogy to him indicated how fondly he was remembered. Finally, Livingston was a ready adherent to precedent, as he had demonstrated on the New York bench. When a question was settled, Livingston was unlikely to challenge its resolutions, even obliquely. In short, Livingston was a good team player, and our constitutional jurisprudence may be poorer for it. A clear example of the consequences of Livingston's proclivity for compromise is seen in sturges v. crowninshield (1819), in which the Court invalidated a New York insolvent law of 1811 because it had been applied retroactively. On circuit, Livingston had emphatically sustained the same law in Adams v. Storey (1817); yet he proceeded to compromise in Sturges. It seems likely that Marshall did not wish to say in his opinion that the states had concurrent power to pass bankruptcy or insolvency laws, but he did—probably in response to Livingston's urging. Livingston's main role on the Marshall Court and in the development of constitutional jurisprudence was that of a compromiser. His opinions, with few exceptions, are forgettable.

Donlad Roper
(1986)

Bibliography

Dunne, Gerald T. 1969 Brockholst Livingston. In Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court. New York: Chelsea House.

Haskins, George Lee, and Johnson, Herbert A. 1981 Foundationsof Power: John Marshall, 1801–1815, volume II of Freund, Paul A., general editor, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States. New York: Macmillan.