Justice David J. Brewer (1837-1910) – Guest Essayist: Daniel A. Cotter
David J. Brewer: Foreign Born Justice Who Sat with His Uncle
David J. Brewer was born on June 20, 1837, in Smyrna, Asia Minor (today Turkey), the fourth of six Supreme Court Justices born outside the United States. Brewer sat on the Court with his uncle, Stephen J. Field, to date the only relatives to serve contemporaneously, with Brewer serving twenty years on the Court before his death in 1910.
Early Life and Career
Brewer was born to Emilia Brewer (nee Field) and Reverend Josiah Brewer, who oversaw a school for Greeks in Smyrna at the time. When Brewer was a young boy, his father returned with his family to the United States to become chaplain of St. Francis Prison in Wethersfield, Connecticut. Brewer’s mother was the sister of Stephen J. Field, who had accompanied her and the reverend to Smyrna.
Brewer attended college at Wesleyan University, then transferred to Yale University, where he graduated Phi Beta Kappa. Upon graduation from Yale, Brewer studied law at the office of another uncle, David Field (who later prepared the code of civil procedure known as The Field Code). Brewer also completed a one-year course at Albany Law School before being admitted to the New York bar. After a short stint prospecting for gold, Brewer moved to Leavenworth, Kansas, where he established his law practice. Brewer quickly became a judge in the Kansas state courts and also served one year as the city attorney for Leavenworth. In 1870, Brewer became a Judge on the Kansas Supreme Court, where he served fourteen years before President Chester A. Arthur appointed him to the Eighth Circuit Court of Appeals. Brewer served five years in that capacity before President Benjamin Harrison nominated him to fill a vacancy on the Supreme Court.
President Harrison nominated Brewer on December 4, 1889, to fill the vacancy created by Justice Stanley Matthew’s death. On December 18, 1889, by a vote of 53 to 11, the Senate confirmed Brewer, and he joined his uncle, Stephen J. Field, as the 51st Justice of the U.S. Supreme Court.
Brewer sat on the Court until his death on March 28, 1910. To date, he is the only Justice nominated from the State of Kansas. And together, the Brewer-Field uncle/nephew duo served more than fifty-four years combined on Court.
During his time on the Court, Brewer was a strong defender of the rights of women and minorities, including the protection of Chinese and Japanese immigrants. Brewer was also a contributor to the doctrine of substantive due process. In Muller v. Oregon (1908), Brewer wrote for a unanimous Supreme Court upholding restrictions on the working hours of women, stating:
Then follow extracts from over ninety reports of committees, bureaus of statistics, commissioners of hygiene, inspectors of factories, both in this country and in Europe, to the effect that long hours of labor are dangerous for women, primarily because of their special physical organization. The matter is discussed in these reports in different aspects, but all agree as to the danger.
At the time, the decision and rationale were seen as being protective of and defending women’s rights, but the rationale in Muller has since been dismissed.
Brewer also wrote the unanimous decision in In Re Debs (1908), upholding the power of the United States Government to enjoin a strike against the United States Postal Service. In United State v. Ju Toy (1905), a case in which the Supreme Court conceded its power to judicially review immigration matters, Brewer dissented, stating:
Banishment of a citizen not merely removes him from the limits of his native land, but puts him beyond the reach of any of the protecting clauses of the Constitution. In other words, it strips him of all the rights which are given to a citizen. I cannot believe that Congress intended to provide that a citizen, simply because he belongs to an obnoxious race, can be deprived of all the liberty and protection which the Constitution guarantees, and if it did so intend, I do not believe that it has the power to do so.
Brewer had earlier dissented in another Chinese exclusion case, Fong Yue Ting v. United States (1893), which upheld the Geary Act extending the Chinese Exclusion Act and required United States citizens of Chinese dissent to obtain certificates of residency or face deportation even if no other crime was committed. Brewer stated:
I rest my dissent on three propositions: first, that the persons against whom the penalties of section 6 of the act of 1892 are directed are persons lawfully residing within the United States; secondly, that, as such, they are within the protection of the Constitution, and secured by its guaranties against oppression and wrong; and third, that section 6 deprives them of liberty, and imposes punishment without due process of law, and in disregard of constitutional guaranties, especially those found in the 4th, 5th, 6th, and 8th articles of the amendments.
Brewer left to attend to his daughter’s unexpected death in Leavenworth, Kansas, on the day Plessy v. Ferguson was argued, and did not participate in that decision.
Brewer was the author of three books during his time on the Court – The Pew for the Pulpit (1897), The United States: A Christian Nation (1905), and United States in the Cause of Peace (1909).
Brewer’s legacy as a Supreme Court Justice is one of defending various minority rights, primarily in dissent. He served on the Court until his death at the age of 72. All told, Brewer served almost fifty years on the bench at both the state and federal level.
Dan Cotter is a partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else.