Livingston, Henry Brockholst (1757–1823)

• Author: Donlad Roper
• Pages: 1635-1636

Page 1635

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...