David Josiah Brewer (June 20, 1837 – March 28, 1910) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1890 to 1910. An appointee of President Benjamin Harrison, he supported states' rights, opposed broad interpretations of Congress's power to regulate interstate commerce, and voted to strike down economic regulations that he felt infringed on the freedom of contract. He and Justice Rufus W. Peckham were the "intellectual leaders" of the Fuller Court, according to the legal academic Owen M. Fiss. Brewer has been viewed negatively by most scholars, though a few have argued that his reputation as a reactionary deserves to be reconsidered.
Born in Smyrna (modern-day İzmir, Turkey) to Congregationalist missionaries, Brewer attended Wesleyan University, Yale University, and Albany Law School. He headed west and settled in Leavenworth, Kansas, where he practiced law. Brewer was elected to a county judgeship in 1862; he later served as judge of Kansas's First Judicial District and as the county attorney for Leavenworth County. In 1870, he was elected to the Kansas Supreme Court, where he served for fourteen years, participating in decisions on segregation, property rights, women's rights, and other issues. President Chester A. Arthur appointed him as a federal circuit judge in 1884. When Justice Stanley Matthews of the Supreme Court of the United States died in 1889, President Benjamin Harrison nominated Brewer to succeed him. Despite some objections from prohibitionists, the U.S. Senate voted 53–11 to confirm Brewer, and he took the oath of office on January 6, 1890.
Brewer opposed governmental interference in the free market and rejected the Supreme Court's decision in Munn v. Illinois (1877), which had upheld the states' power to regulate businesses, writing: "The paternal theory of government is to me odious." He joined the majority in decisions such as Lochner v. New York (1905), in which the Court invoked the doctrine of substantive due process to strike down a New York labor law. Brewer was not uniformly hostile to regulations, however; his majority opinion in Muller v. Oregon (1908) sustained an Oregon law that set maximum working hours for female laborers. He joined the majority to strike down the federal income tax in Pollock v. Farmers' Loan & Trust Co. (1895), and, writing for the Court in the case of In re Debs (1895), he expanded the judiciary's equitable authority by upholding an injunction against the organizers of a strike. He favored a narrow interpretation of the Sherman Antitrust Act in United States v. E. C. Knight Co. (1895), but he cast the deciding vote in Northern Securities Co. v. United States (1904) to block a corporate merger on antitrust grounds.
Brewer generally ruled against African-Americans in civil rights cases, although he consistently voted in favor of Chinese immigrants. He opposed imperialism and, in the Insular Cases, rejected the idea that the Constitution did not apply in full to the territories. His majority opinion in Church of the Holy Trinity v. United States (1892) contained a frequently criticized claim that the United States "is a Christian nation". Off the bench, he was a prolific public speaker who decried Progressive reforms and criticized President Theodore Roosevelt. He advocated for peace and served on an arbitral commission that resolved a boundary dispute between Venezuela and the United Kingdom. He remained on the Supreme Court until his death in 1910.
Early life
David Josiah Brewer was born on June 20, 1837, in Smyrna (modern-day İzmir, Turkey), which was at the time a part of the Ottoman Empire. He was the fourth child of Josiah Brewer, a Massachusetts-born Congregationalist missionary to the Mediterranean, and his wife Emilia A. Field, a member of the prominent Field family whose brothers included David Dudley Field (a well-known attorney), Stephen J. Field (a justice of the U.S. Supreme Court), Cyrus W. Field (who developed the Transatlantic telegraph cable), and Henry M. Field (a clergyman). The family returned to the United States in 1838; the elder Brewer pastored several congregations in New England and served as the chaplain of a Connecticut state penitentiary.
When Brewer was fifteen years old, he enrolled at Wesleyan University in Connecticut. At Wesleyan, he joined the Peithologian literary society and a group known as the Mystical Seven. Brewer transferred to Yale two years later; he took classes in political philosophy, the U.S. Constitution, Hebrew, mathematics, theology, and other topics. His classmates included Henry Billings Brown, who later served with him on the Supreme Court, and Chauncey Depew, a future senator. Brewer expressed interest in politics during his college years, and he wrote numerous forceful letters to the editor, including a fiery denunciation of the Supreme Court's Dred Scott decision. One Yale classmate recalled that the future justice had a reputation for "jumping up on the slightest provocation to make a speech, especially on political lines". Brewer graduated from Yale in 1856, receiving an A.B. degree with honors.
Upon his graduation, Brewer moved to New York City, where he read law in the office of his uncle David Dudley Field. After a year, he enrolled at Albany Law School, from which he received an LL.B. degree in 1858. Brewer pondered whether to remain in New York with his uncle David or to move to California to work with his uncle Stephen, but he eventually rejected both options, declaring: "I don't want to grow up to be my uncle's nephew." He moved to Kansas City, Missouri; after practicing law there for a few months, he joined the Pike's Peak gold rush and headed west in search of fortune. Having found no gold, he settled in Leavenworth, Kansas Territory, a city of about ten thousand that was both a center of regional commerce and the home of several notable figures in Kansas's legal community.
Career After a short period of work at a law firm in Leavenworth, Brewer began a legal practice of his own with a partner. In 1861, he was appointed commissioner of the U.S. Circuit Court for the District of Kansas, an administrative position in which he issued warrants and completed paperwork. He continued to practice law, and he served as a second lieutenant in the "Lane Rifles," a Union Home Guard, during the Civil War. In 1862, after unsuccessfully seeking the Republican nomination for a seat in the state legislature, he hesitantly accepted a nomination to be the party's candidate for judge of Leavenworth County's criminal and probate courts. Although he was only twenty-five years old, he won the election. As a judge, Brewer punished criminals harshly; despite his inexperience, he quickly gained a reputation as a competent jurist. Having been urged by several local attorneys to run, Brewer sought and won election in 1864 as judge of the First Judicial District of Kansas, which encompassed Leavenworth and Wyandotte counties. In that position, he held a general in contempt of court and ruled that a man who was one-quarter black had the right to vote. Brewer was elected county attorney in 1868, serving until 1870; he also resumed the private practice of law.
Kansas Supreme Court (1870–1884) In 1870, the state's Republicans unexpectedly nominated Brewer instead of incumbent Justice Jacob Safford for a seat on the Kansas Supreme Court. In the heavily Republican state, Brewer won the general election handily; he was easily reelected in 1876 and 1882. According to Brian J. Moline, his opinions on the state Supreme Court, "while well within the conventions of the time, exhibit an individualistic, even progressive, instinct". In a landmark women's rights decision in Wright v. Noell, he ruled in favor of a woman who had been elected to serve as county superintendent of public instruction, reversing a lower court's holding that she was ineligible to serve. Brewer rendered rulings that were sympathetic to Native Americans, and he emphasized the best interests of the child in child custody cases.
In Board of Education v. Tinnon, Brewer dissented when the court held that the city of Ottawa, Kansas, could not lawfully segregate its schools. Justice Daniel M. Valentine's opinion for a 2–1 majority concluded that local school boards had no authority beyond the powers expressly given to them by state law; since state law did not expressly authorize school boards to create separate schools for blacks and whites, he determined that segregation in Ottawa was not permissible. In what the law professor Andrew Kull characterized as an "angry dissent", Brewer disagreed. He maintained that school boards could act without explicit authorization from the legislature, and he also argued that racial segregation did not violate the Fourteenth Amendment to the U.S. Constitution, writing that "each State has the power to classify school children by color, sex, or otherwise, as to its legislature shall seem wisest and best". In his biography of Brewer, the historian Michael J. Brodhead maintained that the justice's reasoning was "not overtly racist" and rested instead on his longstanding support for local self-governance; the legal scholar Arnold M. Paul, by contrast, argued that the opinion exhibited "an insensitivity to social problems... combined with a simplistic legal formalism".
According to Paul, cases in the 1880s involving Kansas's prohibition of alcohol "mark the decisive turning points in Brewer's shift to hard-line conservatism". In State v. Mugler, a brewer challenged a state law that forbade the manufacture of beer, arguing that it deprived him of his property without due process of law. The court ruled against him on the basis that the law fell within the state's police power. Although Brewer did not formally dissent, he expressed his reservations about the majority's conclusions, suggesting that the law in effect deprived the brewer of his property without just compensation. (Mugler appealed to the U.S. Supreme Court, but in Mugler v. Kansas, it ruled that the prohibition law was constitutional.) Brewer's opinion in Mugler presaged the protective attitude toward property rights that he later displayed on the U.S. Supreme Court.
Eighth Circuit (1884–1889) When Judge John F. Dillon resigned in 1879, several state officials encouraged President Rutherford B. Hayes to nominate Brewer to the ensuing vacancy on the federal circuit court for the Eighth Circuit. George W. McCrary was appointed instead, but when McCrary resigned in 1884, President Chester A. Arthur nominated Brewer to take his place. Brewer characterized the Eighth Circuit as "an empire in itself": it encompassed Arkansas, Colorado, Iowa, Kansas, Minnesota, Missouri, and Nebraska, to which North Dakota, South Dakota, and Wyoming were added several years after his appointment. As a circuit judge, he heard a wide variety of cases, including federal civil disputes, matters arising under the court's diversity jurisdiction, and the occasional criminal prosecution. Most cases were under the circuit court's original jurisdiction, although Brewer heard a few appeals from federal district courts.