Today, Justice David Brewer may not be particularly well known, but that wasn’t always the case. Among his other activities, Brewer made an (unsuccessful) trip to Colorado in search of gold, served on the Supreme Court alongside his uncle (the only instance to date of two relatives sitting on the bench simultaneously), and was – at the time – “unquestionably the Justice most familiar to the American public.”
Brewer was born in June 1837, in Smyrna, Asia Minor (the former Ottoman Empire, now Turkey) – one of only six justices in the court’s history to have been born outside of the United States. His father was a reverend and ran a missionary school in Smyrna, while his mother was the sister of one of Brewer’s eventual colleagues on the Supreme Court, Stephen J. Field. The family returned to the U.S. when Brewer was still relatively young and settled in Connecticut. He enrolled at Wesleyan College at 14, transferred to Yale after two years, and graduated in 1856. While at Yale, Brewer was “greatly influenced“ by Theodore Dwight Woolsey, Yale’s president and a political science scholar, who believed in individual “moral self-development“ and that this was one of the central goals of government.
After Yale, Brewer spent a year in New York City reading law at the office of his uncle, David Dudley Field, before receiving a degree from Albany Law School in 1858. Brewer then tried his luck in the Colorado goldfields, found none, and moved to Kansas in 1859 before serving in a number of judicial roles – circuit court commissioner, probate court judge, and state district court judge. In 1870 Brewer was elected to the Kansas Supreme Court, where he remained for 14 years before President Chester Arthur appointed him to the U.S. Court of Appeals for the 8th Circuit in 1884.
President Benjamin Harrison then nominated Brewer in December 1889 to fill the vacancy left by the death of Justice Stanley Matthews, and the Senate confirmed him 53-11 later that month. He was sworn in on Jan. 6, 1890, joining the court with his uncle, Stephen Field, who had been sitting since 1863.
On the court, Brewer authored 540 majority opinions, a total surpassed by only five justices at the time of his death in 1910. Simultaneously, he was the Fuller court’s leading dissenter, averaging 11.3 dissents per term – and in the process beat out even John Marshall Harlan (who averaged 11.1), the “Great Dissenter.” Brewer’s jurisprudence linked him, in the eyes of historians, to what is now known as the Lochner era — a period of Supreme Court history named after the 1905 case of Lochner v. New York, in which the court frequently struck down economic regulations on the grounds that they infringed on the individual right to the freedom of contract. Specifically, in Lochner, five justices (including Brewer) held that a New York law capping bakers’ working hours violated the 14th Amendment’s protections.
Perhaps Brewer’s best-known majority opinion came in the unanimous case of Muller v. Oregon, which upheld Oregon’s cap on women’s working hours; his reasoning rested partly on women’s physical differences from men, writing that “history discloses the fact that woman has always been dependent upon man.”
Notably, Brewer also dissented in two major Chinese exclusion cases. The first, Fong Yue Ting v. United States, challenged the Geary Act of 1892, which required Chinese residents to carry residency certificates or face deportation. Brewer dissented, joined by Chief Justice Melville Fuller and Field, on the grounds that, among other things, such persons were constitutionally entitled to due process and that the act deprived them of this. The second case, United States v. Ju Toy, upheld the denial of re-entry to a U.S. citizen of Chinese dissent who had traveled temporarily abroad. Brewer again dissented, arguing that barring a citizen – guilty of no crime – from returning home without a jury trial stripped him of his constitutional protections, and that Congress could not constitutionally deprive a citizen of the rights the Constitution guarantees.
As for Plessy v. Ferguson, which was decided while Brewer served on the court, he did not participate; his daughter died unexpectedly the day the case was argued and he left Washington to be with his family.
Off the bench, Brewer was an orator and writer, giving lectures to bar associations, church congregations, and all-Black colleges – and at one point took leave of his court position to serve as president of the Venezuela-British Guiana Border Commission. As such, his name appeared in newspapers more frequently than those of either Fuller or even Harlan (although after his death, his eulogists wrote that his “fame was largely the product of his love of public speaking and his willingness to go almost anywhere to address an audience.”) Brewer died in office in March 1910 of a heart attack, at the age of 72, after 20 years on the court. His body was brought back to Kansas, where he was buried, and he was succeeded by Justice Charles Evans Hughes.
Brewer’s reputation after his death faced some difficulties. Theodore Roosevelt privately dismissed him as “a menace to the welfare of the Nation” and (less charitably) a judge with “a sweetbread for a brain.” The two men had clashed openly during Brewer’s final years on the bench – Brewer publicly criticized Roosevelt’s imperialism and had openly called into question whether Roosevelt was suited to hold the presidency. Generations of historians, too, associated Brewer with the disfavored Lochner Era and moved on. That said, his voting record tells a somewhat different story: in 739 cases involving “challenges to the legitimacy of state regulation,” Brewer sided with the state nearly 80% of the time, and while on the Kansas Supreme Court, he had warned that the nation’s large corporations would soon be “wrestling for political power and control.” Brewer was a complicated man, and a complicated justice.
