BREWER, DAVID JOSIAH

BREWER, DAVID JOSIAH

David Josiah Brewer was an associate justice of
the Supreme Court from 1890 to 1910. A
defender of personal liberty and property rights,
he also supported STATES’ RIGHTS and was
opposed to centralization of power in the federal
government.

Brewer was born June 20, 1837, in Smyrna,
Asia Minor (now Turkey). His father, Josiah
Brewer, was a Yale graduate who worked in
Turkey as a missionary. His mother, Emilia
Field, was the sister of Supreme Court justice
STEPHEN J. FIELD, with whom Brewer eventually
served. After returning to the United States from
their missionary work, the Brewers settled in
Wethersfield, Connecticut. Brewer attended
Wesleyan University for two years before transferring
to Yale, where he graduated with honors
in 1856. He studied law for a year with an uncle
and then enrolled in Albany Law School. He
received his law degree in 1858 and was admitted
to the New York bar the same year.
Brewer decided to stake his future on the
frontier West. He settled in Leavenworth,
Kansas, and almost immediately began his long
judicial career. He was appointed commissioner
of the U.S. Circuit Court for the District of
Kansas in 1861 and was elected judge of the probate
and criminal courts of Leavenworth
County in 1862. Brewer served as a judge of the
first judicial district of Kansas from 1865 to
1869. He briefly left the judiciary in 1869 to
become Leavenworth’s city attorney, but
returned in 1870 when, at the age of thirtythree,
he was elected to the Kansas Supreme
Court. He sat on the Kansas bench until 1884
when President CHESTER ARTHUR named him to
the federal circuit court for the eighth circuit.
Five years later, President WILLIAM H. HARRISON
appointed him to the U.S. Supreme Court,
where he remained until his death.
As a Supreme Court justice, Brewer was
known for his ardent support of individual rights
against the tyranny of the majority. “Here there is
no monarch threatening TRESPASS upon an individual,”
he once said. “The danger is from the
multitude—the majority with whom lies the
power.” Brewer had great compassion for the
marginalized members of U.S. society. In 1908, he
wrote the opinion for a unanimous Court in
Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L.
Ed. 551, upholding a statute that established maximum
work hours for women toiling in laundries.
Although he had in 1905 voted to invalidate a
similar statute that applied to bakers, in LOCHNER
V. NEW YORK (198 U.S. 45, 25 S. Ct. 539, 49 L. Ed.
937 [1905]), Brewer was convinced that the particular
statute at issue in Muller did not unnecessarily
limit an individual’s contract liberty.
Brewer also wrote strong dissents in several
cases limiting the rights of Chinese and Japanese
immigrants (see Fong v. United States, 149 U.S.
698, 13 S. Ct. 1016, 37 L. Ed. 905 [1893]; United
States v. Sing Tuck, 194 U.S. 161, 24 S. Ct. 621, 48
L. Ed. 917 [1904]; United States v. Ju Toy, 198
U.S. 253, 25 S. Ct. 644, 49 L. Ed. 1040 [1905]; the
Japanese Immigrant case, 189 U.S. 86, 23 S. Ct.
611, 47 L. Ed. 721 [1903]).His dissent in Fong, in
which the Court found that the power of Congress
to deport ALIENS was inherent in national
sovereignty, included this sarcastic indictment
of what he considered Congress’s ARBITRARY
denial of plaintiffs’ rights: “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 was, in most cases, a moderate conservative.
He spoke out against racial DISFRANCHISEMENT
in Giles v. Harris, 189 U.S. 475, 23 S.
Ct. 639, 47 L. Ed. 909 (1903).However, reflecting
his belief in states’ rights, he held that a state had
the right to prohibit INTEGRATION in an institution
it had created (Berea College v. Kentucky,
211 U.S. 45, 29 S. Ct. 33, 53 L. Ed. 81 [1908]) and
that the federal government lacked power to
prosecute a case of racially motivated harassment
(Hodges v. United States, 203 U.S. 1, 27 S.
Ct. 6, 51 L. Ed. 65 [1906]). A lifelong advocate of
international peace, Brewer served as president
of a congressional commission investigating a
border dispute between Venezuela and British
Guyana, and later served on the tribunal that
ended the controversy. Brewer advocated
women’s suffrage and restrictions on immigration.
He was a vigorous anti-imperialist who
believed that the Philippines should be given
independence with guaranteed neutrality.
Brewer was an unusually outgoing justice
who lectured frequently and wrote several
books, including The Pew to the Pulpit, The
Twentieth Century from Another Viewpoint,
American Citizenship, and The United States: A
Christian Nation. He felt strongly that judges
have a moral obligation to use their lofty position
to lead rather than simply observe. “It is one
thing,” he once said, “to fail of reaching your
ideal. It is an entirely different thing to deliberately
turn your back on it.”
Brewer died in Washington, D.C., on March
28, 1910.

FURTHER READINGS
Brodhead, Michael J. 1994. David J. Brewer: The Life of a
Supreme Court Justice, 1837-1910. Carbondale: Southern
Illinois Univ. Press.
Hylton, Joseph Gordon. 1994. “David Josiah Brewer: A Conservative
Justice Reconsidered.” Journal of Supreme
Court History. 45–64.
Schwartz, Bernard. 1993. A History of the Supreme Court.
New York: Oxford Univ. Press.
Tribe, Laurence H. 1985. God Save This Honorable Court.
New York: Random House.