David J. Brewer
David J. Brewer | |
---|---|
Associate Justice of the Supreme Court of the United States | |
In office January 6, 1890 – March 28, 1910 | |
Nominated by | Benjamin Harrison |
Preceded by | Stanley Matthews |
Succeeded by | Charles Evans Hughes |
Judge of the United States Circuit Court for the Eighth Circuit | |
In office March 31, 1884 – December 18, 1889 | |
Nominated by | Chester A. Arthur |
Preceded by | George W. McCrary |
Succeeded by | Henry Clay Caldwell |
Justice of the Kansas Supreme Court | |
In office January 9, 1871 – April 8, 1884 | |
Preceded by | Jacob Safford |
Succeeded by | Theodore A. Hurd |
Personal details | |
Born | Smyrna, Ottoman Empire (now İzmir, Turkey) | June 20, 1837
Died | March 28, 1910 Washington, D.C., U.S. | (aged 72)
Political party | Republican |
Spouses | Louise Landon
(m. 1861; died 1898)Emma Mott (m. 1901) |
Children | 4 |
Education | Wesleyan University Yale College (BA) Albany Law School (LLB) |
Signature | |
David Josiah Brewer (June 20, 1837 – March 28, 1910) was an American jurist who served as an
Born in
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 also 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,
When David was fifteen years old, he enrolled at Wesleyan University in Connecticut.[4]: 1516 At Wesleyan, he joined the Peithologian literary society and a group known as the Mystical Seven.[1]: 3–4 Brewer transferred to Yale two years later; he took classes in political philosophy, the U.S. Constitution, Hebrew, mathematics, theology, and other topics.[4]: 1516 His classmates included Henry Billings Brown, who later served with him on the Supreme Court, and Chauncey Depew, a future senator.[6]: 618 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.[4]: 1516 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".[1]: 4 Brewer graduated from Yale in 1856, receiving an A.B. degree with honors.[7]: 904–905
Upon his graduation, Brewer moved to New York City, where he read law in the office of his uncle David Dudley Field.[1]: 4 [8]: 194 After a year, he enrolled at Albany Law School, from which he received an LL.B. degree in 1858.[7]: 904–905 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."[1]: 6 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.[1]: 6 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.[1]: 6–7
Career
After a short period of work at a law firm in Leavenworth, Brewer began a legal practice of his own with a partner.[9]: 252 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.[1]: 9 [7]: 905 He continued to practice law, and he served as a second lieutenant in the local militia during the Civil War.[1]: 9 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.[4]: 1516 Although he was only twenty-five years old, he won the election.[1]: 10, 12 As a judge, Brewer punished criminals harshly; despite his inexperience, he quickly gained a reputation as a competent jurist.[1]: 11–13 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.[1]: 13 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.[1]: 13–14 Brewer was elected county attorney in 1868, serving until 1870; he also resumed the private practice of law.[1]: 19–20
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.[1]: 22 In the heavily Republican state, Brewer won the general election handily; he was easily reelected in 1876 and 1882.[1]: 22 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".[9]: 252 In a landmark women's rights decision in Wright v. Noell,[a] 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.[4]: 1516–1517 [9]: 252 Brewer rendered rulings that were sympathetic to Native Americans, and he emphasized the best interests of the child in child custody cases.[1]: 41, 43
In Board of Education v. Tinnon,
According to Paul, cases in the 1880s involving Kansas's
Eighth Circuit (1884–1889)
When Judge
In Chicago & N.W. Railway Co. v. Dey,
Supreme Court nomination
Justice
Harrison announced his selection of the surprised Brewer on December 4, 1889, sending the nomination to the
Supreme Court (1890–1910)
Brewer remained on the Court for twenty years, serving until his death in 1910.[9]: 255 In the 4,430 cases in which he participated, he wrote 539 majority or plurality opinions, 65 dissenting opinions, and 14 concurring opinions.[16]: 661 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.[17]: 568, 576 [18]: 147 Brewer has often been described as an extremely conservative justice.[19]: 45 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".[4]: 1515 Some scholars argued in the 1990s that Brewer's jurisprudence was less extreme than generally thought, contending that his reputation as a reactionary was based largely on a small and unrepresentative sample of his comments and opinions.[17]: 578 While accepting that "Brewer can fairly be labeled a conservative", the legal scholar J. Gordon Hylton wrote in 1994 that "to say that he was a self-conscious defender of the interests of corporate America or an enthusiastic disciple of laissez-faire is both unfair and inaccurate".[19]: 57–58
Brewer held an
Substantive due process
Brewer and his fellow conservative justices led the Court toward rulings that interpreted the
The era of substantive due process reached its zenith in the 1905 case of Lochner v. New York.[k][27]: 181 Lochner involved a New York law that capped hours for bakery workers at sixty hours a week.[28]: 520 In a decision widely viewed to be among the Supreme Court's worst,[28]: 516 a five-justice majority held the law to be unconstitutional under the Due Process Clause.[29]: 588–589 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.[30]: 1496–1497 Peckham rejected the state's argument that the law was intended to protect workers' health, citing the "common understanding" that baking was not unhealthy.[29]: 590 He maintained that bakers could protect their own health, arguing that the law was in fact a labor regulation in disguise.[26]: 98 The decision provoked a now-famous dissent from Justice Oliver Wendell Holmes Jr., who accused the majority of substituting its own economic preferences for the requirements of the Constitution.[30]: 1500 Brewer voted to strike down labor laws in other cases, such as Holden v. Hardy,[l] which involved a maximum-hour law for miners, and Adair v. United States,[m] which voided a federal law against yellow-dog contracts.[4]: 1530–1531
According to Hylton, the common view that Brewer uniformly opposed regulations is inaccurate.[19]: 47 Maintaining that "Brewer's bark proved to be worse than his bite", he observes that the justice voted to uphold state regulatory action in nearly eighty percent of cases.[17]: 580–581 When an Oregon law that kept female employees of factories and laundries from working more than ten hours a day was challenged in the 1908 case of Muller v. Oregon,[n] Brewer wrote the Court's unanimous opinion upholding it.[4]: 1531–1532 He favorably cited an extensive brief filed by Louis Brandeis (the Brandeis brief) that, using statistics and other evidence, argued that the law was appropriate as a matter of public policy.[31]: 219–220 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".[1]: 153–154 [31]: 220 In other cases, he voted to uphold labor regulations involving seamen and those performing hazardous work, and he disfavored attempts to invoke the freedom-of-contract doctrine in cases that did not pertain to employment.[19]: 53 Addressing the justice's reasons for upholding some regulations while invalidating others, Hylton comments that "Brewer 'knew an unconstitutional use of the police power when he saw one', but he was never able to define precisely what made it so".[17]: 586
Federal power
Taxation
Brewer joined the majority in the case of
Interstate commerce
Brewer was generally hesitant to interpret the federal government's
Nonetheless, Brewer was not uniformly deferential to the interests of business.[23]: 59 In Northern Securities Co. v. United States,[t] he cast the deciding vote to block a merger between James J. Hill and J. P. Morgan, two of the era's leading corporate barons.[20]: 71 In a brief concurrence that according to the legal scholar John E. Semonche "illustrates his integrity, competence, and sophistication" better than any of his other opinions, Brewer expressed support for property rights but concluded that the proposed merger was an unlawful attempt to suppress competition.[31]: 171–172 His opinion endorsed the rule of reason—the idea, later accepted by his colleagues, that the Sherman Act outlawed only unreasonable restraints on commerce.[1]: 146–147 Brewer joined the majority in other decisions that applied the antitrust laws more broadly, including United States v. Trans-Missouri Freight Association[u] and Addyston Pipe & Steel Co. v. United States.[v][23]: 59, 70
In re Debs
In the well-known case of
"A Christian nation": Church of the Holy Trinity v. United States
One of Brewer's best-known opinions came in Church of the Holy Trinity v. United States.[x][17]: 584 The case arose when the Holy Trinity Episcopal Church hired E. Walpole Warren, a British clergyman, to be the church's rector.[34]: 444 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".[35]: 471 [34]: 444 The statute did not exempt members of the clergy, and according to Semonche "the words were clear and the application logically unassailable".[31]: 37 Yet in an opinion by Brewer, the Court unanimously reversed the conviction.[31]: 37–38 Writing that "if a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity",[35]: 472 Brewer reasoned that the law was clearly intended to forbid the importation of unskilled laborers rather than ministers.[1]: 111 The case's emphasis on Congress's intent over the statute's text marked a turning point in the Court's treatment of legislative history,[36]: 1835–1836 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.[37]: 1056–1057
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:[2]: 181 that the United States "is a Christian nation".[38]: 232 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.[35]: 472–473 The decision came during an era in which the idea that America was a Protestant country was not particularly controversial, and few objected to Brewer's comments at the time.[35]: 474 But legal scholars and later justices have heavily criticized the "Christian nation" claim: for instance, Justice William J. Brennan decried the declaration as "arrogant[]" in a 1984 dissent.[34]: 427–428 Wiecek suggests that, while Brewer was a deeply religious man who favored Christian influence on American culture, the "Christian nation" statement was "a descriptive judgment, not a normative one" and was not of great importance as a matter of law.[2]: 181
Race
Like most of his colleagues, Brewer rarely sided with African-Americans in civil rights cases.
Citizenship, immigration, and the territories
Brewer "passionately protested the treatment of the Chinese, on both procedural and substantive grounds", according to Fiss.[39]: 90 In Fong Yue Ting v. United States,[ad] 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".[1]: 105–106 A displeased Brewer dissented in both United States v. Sing Tuck[ae] and United States v. Ju Toy,[af] immigration cases in which the majority declined to review the decisions of administrative officials; in Sing Tuck, he wrote: "I cannot believe that the courts of this republic are so burdened with controversies about property that they cannot take time to determine the right of personal liberty by one claiming to be a citizen."[31]: 174–175, 198 He joined the majority when the Court held in United States v. Wong Kim Ark[ag] that all persons born on U.S. soil are American citizens,[25]: 116–117 and he dissented when a majority in Yamataya v. Fisher[ah] rebuffed a Japanese deportee's due process claim.[20]: 72 Although the Court as a whole sided with Asians in only 6 out of the 23 cases decided during his tenure, Brewer voted in their favor 18 times.[11]: 317 Brodhead suggests that the justice, a lifelong advocate of Christian efforts to evangelize the world, may have felt that treating the Chinese compassionately would further the missionary cause.[1]: 107
In the
Extrajudicial activities
According to the historian Linda Przybyszewski, Brewer was "probably the most widely read jurist in the United States at the turn of the twentieth century" due to what Justice Holmes characterized as his "itch for public speaking".[35]: 476 He spoke prolifically on various issues, often drawing criticism from his colleagues for his frankness.[3]: 94 The topic about which he spoke most fervently was peace: in his public addresses he decried imperialism, arms buildups, and the horrors of war.[1]: 173 He supported the peaceable resolution of international disputes via arbitration, and he served with Fuller on the arbitral tribunal that resolved a boundary dispute between Venezuela and the United Kingdom.[3]: 95–96 Brewer was not an unqualified pacifist, but Brodhead writes that he "was a tireless, dedicated, and eloquent advocate of peace and among the most visible and vocal critics of militarism in his time".[3]: 100 He also expressed support for education, charities, and the rights of women and minorities.[1]: 179 Many of Brewer's speeches were later published in print; he also edited ten-volume collections of The World's Best Essays and The World's Best Orations and co-authored with Charles Henry Butler a brief treatise on international law.[17]: 572 In his later years, he spoke increasingly on political topics: he decried Progressive reforms and inveighed against President Theodore Roosevelt, who in turn loathed Brewer and stated in private that he had "a sweetbread for a brain" and was a "menace to the welfare of the Nation".[17]: 573–574
Personal life and death
Brewer adhered to a liberal form of Congregationalism, focusing on Jesus's ethical teachings and God's love for humankind instead of sin, hell, and theological principles more generally.[38]: 233 He attended church all his life and taught Sunday school in Kansas and Washington, D.C.[34]: 437 A firm supporter of missionary efforts, he was a member of the American Bible Society and the American Board of Commissioners for Foreign Missions.[1]: 129 Brewer married Louise R. Landon, a native of Vermont, in 1861; they had four children.[1]: 8–10, 12 Louise died in 1898, and Brewer wed Emma Miner Mott three years afterward.[9]: 255 Brewer's hobbies included going to the theater, hunting, playing cards, reading detective stories, and vacationing at a cottage in Vermont on Lake Champlain.[1]: 134–135 [9]: 255 He was known as a friendly and patient man.[9]: 255
Brewer had planned to retire from the Court when he turned seventy in 1907, but he changed his mind, saying he was "too young in spirit" to retire.[1]: 182 In 1909, President William Howard Taft characterized the Court's state as "pitiable", writing that Fuller was "almost senile", that Harlan was doing "no work", that Brewer was "so deaf that he cannot hear" and had "got beyond the point of commonest accuracy in writing his opinions", and that Brewer and Harlan were sleeping during arguments.[40]: 101–102 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.[40]: 78 He was seventy-three years old.[4]: 1533 The U.S. Senate adjourned on March 29 out of respect for the justice, and Taft stated that he was an "able judge".[1]: 183 Brewer's body was returned to Leavenworth, and a funeral was held at that city's First Congregational Church; he was buried at the Mount Muncie Cemetery in nearby Lansing.[40]: 78–79 Taft nominated Charles Evans Hughes to take his place.[1]: 183
Legacy
"History has not been kind to David Brewer", comments Fiss.[23]: 53 He has faded into obscurity, in part because some of his colleagues—Field, Harlan, and Holmes—were figures of great prominence.[39]: 89 Moreover, although public sentiment regarding the justice was mixed in the years following his death, he was almost never discussed favorably after the 1930s, being generally described as an ultra-conservative who adhered closely to laissez-faire principles and made the courts subservient to corporations.[17]: 574–575 Although late-twentieth century revisionist scholarship took a less negative view of the Fuller Court as a whole, Brewer's reputation did not rise: Hylton comments that "[b]y advancing a more moderate interpretation of the Fuller Court as a body, some revisionist historians actually made Brewer seem even more of a reactionary figure than before".[17]: 577 Nonetheless, a few scholarly voices, including Semonche, Brodhead, Hylton, and Purcell, have favored reevaluating the justice's reputation.[17]: 577–578 Brodhead concluded his 1994 biography of Brewer by writing that he "deserves to be remembered as an important figure of a much misunderstood period in the judicial history of the United States".[1]: 187
See also
Notes
- ^ 16 Kan. 601 (1876)
- ^ 26 Kan. 1 (1881)
- ^ 29 Kan. 252 (1883)
- ^ 123 U.S. 623 (1887)
- ^ 35 F. 866 (C.C.S.D. Iowa 1888)
- ^ 94 U.S. 113 (1877)
- ^ 26 F. 178 (C.C.D. Kan. 1886)
- ^ 134 U.S. 418 (1890)
- ^ 143 U.S. 517 (1892)
- ^ 165 U.S. 578 (1897)
- ^ 198 U.S. 45 (1905)
- ^ 169 U.S. 366 (1898)
- ^ 208 U.S. 161 (1908)
- ^ 208 U.S. 412 (1908)
- ^ 157 U.S. 429 (1895) and 158 U.S. 601 (1895)
- ^ 170 U.S. 283 (1898)
- ^ 178 U.S. 41 (1900)
- ^ 188 U.S. 321 (1903)
- ^ 156 U.S. 1 (1895)
- ^ 193 U.S. 197 (1904)
- ^ 166 U.S. 290 (1897)
- ^ 175 U.S. 211 (1899)
- ^ 158 U.S. 564 (1895)
- ^ 143 U.S. 457 (1892)
- ^ 211 U.S. 45 (1908)
- ^ 203 U.S. 1 (1906)
- ^ 197 U.S. 207 (1905)
- ^ 190 U.S. 127 (1903)
- ^ 163 U.S. 537 (1896)
- ^ 149 U.S. 698 (1893)
- ^ 194 U.S. 161 (1904)
- ^ 198 U.S. 253 (1905)
- ^ 169 U.S. 649 (1898)
- ^ 189 U.S. 86 (1903)
- ^ 182 U.S. 1 (1901)
- ^ 182 U.S. 244 (1901)
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