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
alt=Black-and-white photograph of the Field brothers|thumb|Brewer's four well-known uncles. From left to right: [[David Dudley Field II|David Dudley Field, Henry M. Field, Cyrus W. Field, and Stephen J. Field.]]
David Josiah Brewer was born on June 20, 1837, in Smyrna (modern-day İzmir, Turkey), 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 trans-Atlantic 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. 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.
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. 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. 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.
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. 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. It took Harrison nearly nine months to select a nominee, during which time he considered forty candidates. Other candidates suggested to Harrison included the Detroit attorney Alfred Russell, whom Vice President Levi P. Morton endorsed, and McCrary, who was favored by many Midwestern politicians and jurists. Melville Fuller was chief justice throughout Brewer's tenure; the Fuller Court has been described as mainly loyal to business interests and laissez-faire economic principles, although late-twentieth-century revisionist scholars have rejected that narrative. Brewer has often been described as an extremely conservative justice. According to Paul, he "held to a strictly conservative, sometimes reactionary, position on the Court, opposing firmly the expansion of government regulatory power, state or federal" and making "little pretense of 'judicial self-restraint' and few compromises to Court consensus". His constitutional views were shaped by his religious beliefs, and he emphasized natural justice in his written opinions. According to the legal scholar Owen M. Fiss, Brewer and his "constant ally" Rufus W. Peckham were the "intellectual leaders" of the Fuller Court—justices who, while not always in the majority, were "influential within the dominant coalition and the source of the ideas that gave the Court its sweep and direction". Brewer's views were also aligned with those of his uncle—Justice Stephen J. Field—a staunch defender of property rights with whom he served for eight years. The decision, which endorsed the idea that the Due Process Clause contained a substantive component that limited state regulatory authority, was at odds with the Court's holding in Munn that rate-setting was a matter for legislators, not judges, to decide. Strenuously dissenting in Budd v. New York, Brewer derided Munn as "radically unsound" Lochner involved a New York law that capped hours for bakery workers at sixty hours a week. In a decision widely viewed to be among the Supreme Court's worst, Brewer joined the Court's opinion, which was written by Peckham; it maintained that due process included a right to enter labor contracts without being subject to unreasonable governmental regulation. Peckham rejected the state's argument that the law was intended to protect workers' health, citing the "common understanding" that baking was not unhealthy. In an opinion that has been condemned as patronizing toward women, Brewer argued that Oregon's law was different from the one at issue in Lochner because female workers were in special need of protection due to their "physical structure and the performance of maternal functions", which put them "at a disadvantage in the struggle for subsistence". The Supreme Court, which had only eight members at the time because Justice Howell Edmunds Jackson was ill, initially split four-to-four on the tax's constitutionality. He wrote that the executive branch had the power "to brush away all obstructions" to interstate commerce by force if necessary and concluded that an injunction could lawfully be issued to suppress a public nuisance. The church was fined $1000 for violating the Alien Contract Labor Act of 1885, under which it was "unlawful for any person, company, partnership, or corporation... to prepay the transportation, or in any way assist or encourage the importation or migration of any alien... under contract... to perform labor or service of any kind in the United States". and the approach it represents has drawn substantial criticism from jurists such as Antonin Scalia, who described the decision as a "prototypical" example of how statutes ought not to be interpreted.
Brewer's opinion in Holy Trinity also contained a statement that, according to the legal scholar William M. Wiecek, "would be unthinkable today" from a Supreme Court justice: that the United States "is a Christian nation". He cited religious elements of historical documents, court decisions, and "American life as expressed by its laws, its business, its customs and its society" in support of his thesis that Congress could not have intended to bar clergymen from the country. In Fong Yue Ting v. United States, he vigorously dissented when the Court ruled that Chinese non-citizens could be deported without being provided with due process, decrying the majority's understanding of the federal government's powers as "indefinite and dangerous". On March 28, 1910, Brewer, who had until then been in good health, experienced a massive stroke in his Washington, D.C., home and, before doctors could arrive, died.