David Josiah Brewer
(b. Smyrna, Asia Minor [modern Turkey], 20 Jan. 1837; d. Washington, D.C., 28 Mar. 1910; interred Mt. Muncie Cemetery, Leavenworth, Kans.), associate justice, 1890–1910. Brewer was born of Congregational missionary parents in Asia Minor and then raised in privilege. After attending Wesleyan and Yale Universities and Albany Law School, Brewer moved to Kansas in the late 1850s to begin his professional career. There he served on the Supreme Court of Kansas (1870–1884) and the Eighth Federal Circuit Court (1884–1889). In 1890 President Benjamin Harrison appointed him to the U.S. Supreme Court. Brewer was twice married: to Louise R. Landon of Burlington, Vt., in 1861, and after her death, to Emma Miner Mott of Washington, D.C., in 1901.
Today Brewer is largely forgotten, partly because at various points his tenure overlapped with three titans of the law—his uncle, Stephen J. Field, John Marshall Harlan, and Oliver Wendell Holmes. Nevertheless, it was Brewer, along with Rufus W. Peckham, who served as the intellectual leader of a bloc of justices—largely appointed by Grover Cleveland, a Democrat, and Benjamin Harrison, a Republican—that dominated the Supreme Court at the turn of the century. That group included Chief Justice Melville W. Fuller, who described Brewer as “one of the most lovable of them all.”
Brewer's overriding purpose was to affirm the idea of limited state interference with the economy. He marveled at the abundance that capitalism had produced and defended inequalities in the distribution of wealth as inevitable and just.
In In re Debs (1895), Brewer wrote a unanimous opinion for the Court upholding an injunction against the Pullman strike of 1894 on the theory that Eugene Debs and his followers were obstructing the free flow of commerce among the states (see Commerce Power). In Reagan v. Farmers' Loan and Trust Co. (1894), Brewer set aside a regulation of the Texas Railroad Commission limiting railroad rates because investors were receiving no return. He thereby limited the impact of Munn v. Illinois (1877) and in that respect showed a philosophical link with his uncle Field, who originally dissented in that case and was adamant on the protection of property rights.
Brewer was not, however, altogether blinded by his devotion to capitalism, and he was not opposed to the use of state authority when business power threatened the market. In Northern Securities v. United States (1904), for example, he provided the decisive vote to sustain Theodore Roosevelt's effort to set aside a merger between two corporate barons of the day, James Hill and J. P. Morgan.
Moreover, for a man so committed to the market and the system of liberties it implied, Brewer evidenced an instinctive concern for the disenfranchised. Although he joined Peckham's opinion in Lochner v. New York (1905), which invalidated a statute establishing maximum hours for bakers, he wrote the opinion for a unanimous Court in Muller v. Oregon (1908), upholding a similar statute for women working in laundries. Brewer also passionately protested the treatment of the Chinese, on both substantive and procedural grounds. He dissented from Holmes's opinions in United States v. Sing Tuck (1904) and United States v. Ju Toy (1905), which denied resident Chinese access to the Federal courts to try their claims of citizenship, and from Harlan's opinion in the Japanese Immigrant Case (1903), which undermined a Japanese alien's claim for due process in deportation proceedings. He also dissented in Fong Yue Ting v. United States (1893), which involved the use of a pass system for resident Chinese under the Geary Act of 1892. Brewer complained: “In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, why do they send missionaries here?” Brewer also spoke out against the colonialism that swept the nation in the years immediately following the Spanish American War in 1898. “To introduce government by force over any portion of the nation,” he said, “is to start the second quarter of the second century of our life upon principles which are the exact opposite of those upon which we have hitherto lived.”
Like the records of most justices of his time, Brewer's is mixed on the rights of blacks. In Berea College v. Kentucky (1908), he upheld a state statute prohibiting private schools and colleges from providing instruction on an integrated basis; in Hodges v. United States (1906), he ruled that the Federal government lacked the power to prosecute a gang of whites who forced blacks off a job in Arkansas (see Race and Racism). The Berea decision rested on Brewer's view of the totality of a state's power over corporations, entities, or institutions that it helped create; he thought there would be serious constitutional doubts if the Kentucky statute were applied to individuals. The Hodges decision reflected the allocation of power between the states and the national government effectuated by the Civil Rights Cases of 1883. In a critical decision concerning voting discrimination, Giles v. Harris (1903), Brewer, along with Harlan, dissented from an opinion of Holmes that confessed an inability or unwillingness of the Federal courts to provide relief against the massive program of racial disenfranchisement against African‐Americans then sweeping the South (see Vote, Right to).
Brewer's special gift was his conception of the judge's role, which he both propounded and exemplified. He feared the popular movements of his day, which he saw as a threat to civilization, but unlike Holmes, who harbored similar sentiments, Brewer did not believe that the judge was to sit as a spectator while history unfolded; Brewer believed a judge's duty was to remind the people of their highest ideals, to lead rather than to acquiesce. He recognized that there was nothing a judge could do to stop the inevitable triumph of the masses, but still believed that it was the judge's obligation to try. “It is one thing,” Brewer once said, “to fail of reaching your ideal. It is an entirely different thing to deliberately turn your back on it.”
Bibliography
- Owen M. Fiss,
The Fuller Court , in History of the Supreme Court of the United States, vol.8 , Troubled Beginnings of the Modern State, 1888–1910 (1993). - Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887–1895 (1960)
— Owen M. Fiss
