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Brewer, David Josiah

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Birth: June 20, 1837, Smyrna, Asia Minor.

Education: Wesleyan University, 1852–1853; Yale University, A.B., 1856; Albany Law School, LL.B., 1858.

Official Positions: Commissioner, U.S. Circuit Court, Leavenworth, Kansas, 1861–1862; judge of probate and criminal courts, Leavenworth County, 1863–1864; judge, First District of Kansas, 1865–1869; Leavenworth city attorney, 1869–1870; justice, Kansas Supreme Court, 1870–1884; judge, U.S. Court of Appeals for the Eighth Circuit, 1884–1889; president, Venezuela-British Guiana Border Commission, 1895.

Supreme Court Service: Nominated associate justice by President Benjamin Harrison, December 4, 1889, to replace Stanley Matthews, who had died; confirmed by the Senate, December 18, 1889, by a 53–11 vote; took judicial oath January 6, 1890; served until March 28, 1910; replaced by Charles Evans Hughes, nominated by President William Howard Taft.

Death: March 28, 1910, Washington, D.C.

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David Josiah Brewer
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David Josiah Brewer

David J. Brewer was born to the Reverend Josiah Brewer, a New England Congregational clergyman and missionary noted for his opposition to slavery and war, and Emilia Field, the sister of Supreme Court justice Stephen J. Field and prominent law reformer David Dudley Field. Brewer was raised in privilege in Wethersfield, Connecticut, and at age fifteen entered Wesleyan College. He subsequently graduated from Yale University, studied briefly with his uncle, David Field, and then attended Albany Law School.

Adventurous in spirit and eager to free himself of the overpowering reputation of his uncle, Brewer decided in the late 1850s to launch his professional career in the rough-and-tumble environment of Kansas Territory. He quickly earned a reputation for his skill in representing railroad and business interests. A Republican, he filled several lower political and legal offices in the state before serving on the Kansas Supreme Court of and the Eighth Circuit federal court. In 1890 President Benjamin Harrison elevated Brewer to the Supreme Court, in part because the well-qualified Kansas judge was a reluctant aspirant, a quality that Harrison admired.

A justice of considerable intelligence and energy, Brewer was fated to serve on a court that at various periods of his tenure included Stephen Field, John Marshall Harlan, and Oliver Wendell Holmes Jr., justices genuinely brilliant and even more energetic than he. Brewer nevertheless played a critical role in the history of the Court at the turn of the century. He joined with Justice Rufus W. Peckham to become the intellectual leaders of the conservative bloc. Brewer believed strongly that the Court should limit government interference in the economy and permit the marketplace to distribute the inevitable rewards produced by capitalism. Brewer also had an almost unyielding adherence to the idea that the states should be free, under the Tenth Amendment, from federal interference. His orthodox conservatism resulted in more than 200 dissents during his years on the Court. Yet Brewer's views were not altogether predictable. His Congregational, missionary, and antislavery roots meant that he had a sympathetic ear for the disadvantaged.

Brewer's first important majority opinion came in Reagan v. Farmers' Loan & Trust Co. (1894), a case that showed clearly that although he might believe in the idea of states' rights, Brewer was wary of giving the states too much authority to interfere in the marketplace. Reagan stemmed from a decision by the Texas Railroad Commission to regulate railroad rates on commerce within the state. Brewer spoke for the Court in finding the regulation violated the rights of investors in the railroad because they were not receiving any return on their invested capital. Brewer's opinion limited the impact of Munn v. Illinois (1877), which had provided an opening wedge to state regulatory efforts, and in that respect exposed a philosophical link between Brewer and Field, who had originally dissented in Munn on the grounds that protection of property rights was the highest goal of the Constitution.

Brewer's conservative sympathies appeared most dramatically a year later in In re Debs (1895), in which he wrote a unanimous opinion for the Court upholding an injunction against striking workers at the Pullman Palace Sleeping Car Company. Eugene Debs was the president of the American Railroad Union whose members protested an abrupt reduction in pay by the Pullman Company. The strike spread to other unions, and a call went out for a general boycott of all Pullman rail cars, an action that disrupted interstate rail transportation and the movement of the mails.

Conservatives denounced the Pullman strike as a harbinger of an even more fearsome general working-class uprising. When the railroad owners refused to drop Pullman cars from service, violence ensued. U.S. Attorney General Richard Olney won an order from the federal district court in Chicago enjoining the strikers from interrupting the flow of the mails. When Debs ignored the injunction, he was found guilty of contempt of court. President Grover Cleveland subsequently broke the strike by dispatching federal troops to restore order and safe passage of the mails. Debs appealed his contempt conviction to the Supreme Court.

Brewer's unanimous opinion affirmed the injunctions and contempt citations against labor leaders accused of conspiring to block interstate commerce. Brewer held that the federal courts had broad powers to issue such injunctions in order to keep interstate commerce moving. He also concluded that the federal government had a duty to protect the general welfare, the execution of which depended on a complementary power to apply to its own courts for assistance. Brewer realized that the best way to dilute the threat of labor unions was to severely restrict the strike as a tool by which to wring concessions from management.

Brewer championed conservative property interests in other cases. He took part in the majority opinion in Pollock v. Farmers' Loan and Trust Co. (1895), which declared the federal income tax unconstitutional. His agreement with the majority, over the sharp dissents of four other justices, thwarted the federal government's attempt to impose a tax on income until the adoption of the Sixteenth Amendment in 1913.

He objected on constitutional and philosophical grounds to most other efforts that interfered with economic activity. He was, for example, a silent dissenter in Holden v. Hardy (1898), in which the majority upheld the constitutionality of a Utah law that restricted miners and other workers employed in smelters to an eight-hour day except in case of emergency. The majority sustained the statute based on the scope of the police power of the states to provide for the health, safety, morals, and welfare of their citizenry. In this instance, the Court found the regulations particularly appropriate because they dealt with hazardous occupations. Brewer's disagreement with the decision no doubt stemmed from a dilemma in his own thinking. He favored the rights of states to manage their internal affairs and at the same time opposed state actions that would strengthen labor unions and weaken employers. When forced to choose between these competing principles, Brewer usually sided with employers.

Much the same situation confronted him in the landmark case of Lochner v. New York (1905), where he silently joined the majority. The state of New York had fined Joseph Lochner for violating a labor law prohibiting employment in bakeries for more than sixty hours a week or more than ten hours a day. Lochner appealed his conviction to the Supreme Court on the grounds that he should be free to contract for wages and working conditions.

Justice Peckham's majority opinion held that the New York law did indeed interfere with Lochner's freedom to contract. While recognizing that the state had lawful police powers, Peckham emphasized that the legislation based on those powers had to be reasonably related to the ends asserted by the state. A majority of the Court held that New York State had failed to show that the hours worked by bakers in excess of the statute endangered either them or the public. The Court concluded that the due process guarantee of liberty under the Fourteenth Amendment outweighed the state's competing interest in protecting an individual from excessive toil. Brewer joined with the majority because he feared that statutes such as the New York bake shop law undermined traditional capitalistic notions, such as the freedom to contract.

Brewer was not altogether blinded by his devotion to capitalism, however. He was persuaded on occasion, for example, that the power of business could be properly restrained by government when it posed a threat to the market. He provided the decisive vote in Northern Securities Co. v. United States (1904), in which the justices sustained President Theodore Roosevelt's effort to set aside a merger between two corporate barons of the day, James Hill and J. P. Morgan.

Moreover, Brewer's Congregational background and the missionary experiences of his parents disposed him to a patronizing view of the disadvantaged. For example, his opinion for the Court in Muller v. Oregon (1908) seems on first impression to be at odds with his positions in Lochner and Holden. In Muller, Brewer sustained the constitutionality of an Oregon statute that limited the workday for women to ten hours, distinguishing this case from Holden and Lochner on the grounds that these cases involved male workers. Brewer explained that women required special protection by the state and, arguably, less in the way of protection for their right to contract out their labor. Brewer explained that the ten-hour restriction was altogether appropriate, because “women's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.” Such paternalistic assumptions about women were the rule, not the exception, during his time. Brewer's opinion, for example, reached its conclusion by drawing on much of the argument made in support of it by Louis D. Brandeis, a social and legal reformer otherwise hostile to most of the justice's beliefs.

Brewer also regularly protested the treatment accorded the Chinese. Once again, his behavior on the Court reflected something of his childhood. Just as his father had opposed slavery, Brewer balked at the discriminatory treatment accorded the Chinese under the Chinese Exclusion Acts of 1882 and 1892. These measures imposed strict bureaucratic burdens on Chinese aliens living in the United States and on those seeking resident status. In United States v. Sing Tuck (1904), for example, a Chinese alien sued the federal government on the grounds that he had been denied due process in gaining prompt access to the courts. Brewer's powerful dissent in favor of the defendant asked rhetorically: “Why should anyone who claims the right of citizenship be denied prompt access to the courts?” He insisted that a denial of due process had occurred because Chinese immigrants had failed to receive adequate administrative procedure to gain resident status. Brewer concluded by admonishing the majority that its position undermined American foreign relations with the most populous nation on earth and demeaned the Chinese people without cause.

Brewer built an impressive record in support of Chinese immigrants, although he usually did so in the minority. For example, he dissented not only from the Court's opinion in Sing Tuck, but also in United States v. Ju Toy (1905), which denied resident Chinese access to the federal courts to try their claims of citizenship. He disagreed with Justice Harlan's majority opinion in Kaoru Yamataya v. Fisher (1903), also known as the Japanese Immigrant Case, which struck down a Japanese alien's claim for due process in deportation proceedings. And he dissented from the majority in Fong Yue Ting v. United States (1893), which involved the use of a pass system for resident Chinese. Brewer strongly believed that Chinese who had been converted to Christianity should be given better protection under the federal Constitution.

His record concerning the rights of African Americans was mixed. He shared many of the racist sentiments of his day, affirming that a strong antislavery background did not immediately translate into support for government action designed to promote equality for blacks. In Berea College v. Kentucky (1908), for example, Brewer wrote for the Court in upholding a state statute prohibiting private schools and colleges from providing instruction on an integrated basis. He held in Hodges v. United States (1906) that the federal government did not have power to prosecute a gang of whites who had forced blacks to leave their jobs in Arkansas.

Both of these decisions show his strong states' rights beliefs. In Berea, he concluded that the state had total power over the corporations and other entities that it created by law, and in Hodges, he affirmed that the police power equipped the states to deal exclusively with criminal acts carried out by whites against blacks. The only significant exception to this approach was his dissent in Giles v. Harris (1903), in which he joined Harlan against an opinion by Holmes that sustained the massive disfranchisement of African Americans in the South.

Brewer's states' rights views informed other parts of his jurisprudence. For example, he delivered the opinion of the Court in Kansas v. Colorado (1907), a case raising the question of whether, under the Tenth Amendment, the federal government was a government of delegated powers and, if so, whether those powers not specifically delegated were reserved to the states. In this instance, Kansas had sought to enjoin Colorado from diverting waters of the Arkansas River to the detriment of Kansas. The United States had joined the suit, claiming that it had the right under the commerce power to control the waters.

Brewer dismissed the position of the federal government on the grounds that the Constitution did not expressly grant to Washington the right to control the waters. Such a right was, according to Brewer, clearly reserved to the states. “The proposition that there are legislative powers,” he wrote, “not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers.” Brewer concluded that under the enumerated powers doctrine, the federal government had no constitutional prerogative to control water simply because of its interstate nature.

Brewer was adamant in his belief that the states controlled the bulk of power in the federal system. In Leisy v. Hardin (1890), for example, he dissented when the majority held that the interstate nature of liquor shipped into a state prevented that state from regulating it. The police powers were reserved exclusively to the states, Brewer insisted in a dissent joined by Justices Harlan and Horace Gray. If a state did not wish to have liquor brought across its borders, then the federal government could not make it do so. Brewer made a similar point in Champion v. Ames (1903), when he argued in dissent against the constitutionality of a federal law that tried to regulate the sale of lottery tickets across state lines. He explained that to “hold that Congress has general police power would be to hold that it may accomplish objects not entrusted to the general government, and to defeat the operation of the Tenth Amendment.”

His commitment to states' rights even extended to preventing the federal government from outlawing the keeping of an alien woman for the purposes of prostitution. In Keller v. United States (1909), Brewer held that the regulation of prostitution was clearly a matter for the states, one that fell within their exclusive police powers. Even though the Constitution gave Congress broad powers over aliens, that authority did not extend to the punishment of crimes. The reasoning here was particularly disingenuous in light of his ruling in Muller because the alien woman in question was not charged with a crime; rather, those forcing her into prostitution were criminally liable. Brewer's quest to curb federal power, therefore, yielded somewhat strained results.

David Brewer was a conservative judge with an activist vision of the judge's role. He distrusted most of the popular movements of his day, especially the rise of organized labor, which he viewed as an agent of anarchism and a threat to civilization. In this regard, he was much like Holmes. Yet unlike Holmes, Brewer was eager to join the fray and refused to defer to the legislative branch. He believed that he and his judicial contemporaries should lead, not follow, in attempting to ensure a free market for capitalism, some appropriate procedural protection for the disadvantaged, and in releasing the states to realize fully their police powers.

Brewer's views seem antique today. His substantive conservatism on issues of federalism and economic reform disturbs modern-day liberals, while his expansive notion of the power of the judiciary flies in the face of conservatives who believe that judges should defer to the legislative branch. Brewer was an idealist for his conservative times, one sufficiently committed to his beliefs that he thought judicial power an appropriate means of securing them.


Michael J. Broadhead, David J. Brewer: The Life of a Supreme Court Justice (1994), provides a thorough analysis of Brewer's life and times with a sound discussion of his major opinions. Shorter sketches include Owen M. Fiss in Kermit L. Hall, ed. The Oxford Companion to the Supreme Court of the United States (1992), 89–91; and Arnold M. Paul in Friedman and Israel, Justices, vol. 2, 1515. Henry J. Abraham, Justices and Presidents: A Political History of Appointments to the Supreme Court, 2d. ed. (1985), provides a thoughtful analysis of Brewer's appointment to the Court and the political impact of his jurisprudence. See also Joseph Gordon Hylton, “David Josiah Brewer: A Conservative Justice Reconsidered,” Journal of Supreme Court History (1994), 45–64; and S. K. Green, “Justice David Josiah Brewer and the ‘Christian Nation’ Maxim,” Albany Law Review 63 (1999): 427.

Noteworthy Opinions

Leisy v. Hardin,135 U.S. 100 (1890) (Dissent)

Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894)

In re Debs, 158 U.S. 564 (1895)

Champion v. Ames, 188 U.S. 321 (1903) (Dissent)

Giles v. Harris, 189 U.S. 475 (1903) (Dissent)

United States v. Sing Tuck, 194 U.S. 161 (1904) (Dissent)

Kansas v. Colorado, 206 U.S. 46 (1907)

Muller v. Oregon, 208 U.S. 412 (1908)

Berea College v. Kentucky, 211 U.S. 45 (1908)

Keller v. United States, 213 U.S. 138 (1909)


Document Citation
Brewer, David Josiah, in Biographical Encyclopedia of the Supreme Court 69 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18975-1014162
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