BREWER, DAVID J. (1837–1910)

David Josiah Brewer forged conservative socioeconomic beliefs into constitutional doctrine. From the time he assumed his seat on the Supreme Court in December 1889, Brewer unabashedly relied on judicial power to protect private property rights from the supposed incursions of state and federal legislatures. Through more than 200 dissenting opinions, most of which came during his last ten years on the bench, Brewer emerged as the conservative counterpart of the liberal "Great Dissenter," john marshall harlan.

Like his uncle, Justice stephen j. field, Brewer moved from moderate liberalism as a state judge to strident conservatism on the federal bench. Increasing doubts about the power of the Kansas legislature to regulate the manufacture and sale of alcohol punctuated his twelve-year career on the state supreme court. Brewer refrained from directly challenging a constitutional amendment that destroyed the livelihood of distillers without compensation, although, in State v. Mugler (1883), he expressed serious reservations about it. After President chester a. arthur appointed him to the Eighth Circuit in 1884, Brewer adopted a more aggressive position. He held that Kansas distillers deserved just compensation for losses suffered because of prohibition, a position that the Supreme Court subsequently rejected in mugler v. kansas (1887).

Brewer's circuit court opinions on railroad rate regulation proved more prophetic. He ignored the Supreme Court's holding in Munn v. Illinois (1877) that state legislatures could best judge the reasonableness of rates. (See granger cases.) Instead, Brewer asserted that judges had to inquire broadly into the reasonableness of rates and to overturn legislation that failed to yield a fair return on fair value of investment.

These views persuaded President benjamin harrison to appoint Brewer the fifty-first Justice of the Supreme Court. The new Justice immediately lived up to expectations by contributing to the emerging doctrine of substantive due process of law. Brewer advocated use of the Fifth Amendment and the fourteenth amendment to shelter corporate property rights from federal and state legislation. Three months after his appointment he joined the majority in the important case of chicago, milwaukeeand st. paul railway company v. minnesota (1890) in striking down a state statute that did not provide for judicial review of rates established by an independent commission. More than other members of the Court, Brewer sought to expand the limits of substantive due process. Two years later, when the Court reaffirmed its Munn holding in Budd v. New York (1893), Brewer complained in dissent that the public interest doctrine granted too much discretion to the legislature. The Court ultimately accepted his position. In reagan v. farmers ' loan and trust company (1894) he spoke for a unanimous Court in holding that a state legislature could not force a railroad to carry persons or freight without a guarantee of sufficient profit. Brewer dramatically expanded the range of issues that the legislature had to consider when determiningprofitability, and, in so doing, he broadened the grounds for judicial intervention.

Brewer also applied judicial review to congressional acts. He joined the Court's majority in united states v. e. c. knight company (1895) in narrowing Congress's power under the commerce clause. He silently joined the same year with Chief Justice melville w. fuller in pollock v. farmers ' loan and trust company … decision that obliterated more than one hundred years of precedent in favor of a federal income tax.

Brewer's important decision in in re debs (1895) coupled judicial power and property rights with a sweeping assertion of national power. The Debs case stemmed from the actions of the militant American Railway Union and its leader, Eugene V. Debs, in the Pullman strike of 1894. Debs had refused to obey an injunction granted by a lower federal court in Chicago that ordered the strikers to end their boycott of Pullman cars. President grover cleveland dispatched troops to restore the passage of interstate commerce and of the mails. The lower federal court then found Debs and other union members in contempt of court and imprisoned them. Debs petitioned the Supreme Court for a writ of habeas corpus on the ground that the lower court had exceeded its equity power in issuing the injunction and that the subsequent ex parte contempt proceedings had resulted in conviction of a criminal offense without benefit of the procedural guarantees of the criminal law.

Brewer brushed aside Debs's claims with an opinion that blended morality, national supremacy, and the sanctity of private property. In john marshall -like strokes he concluded that the Constitution granted Congress ample power to oversee interstate commerce and the delivery of the mails. The President had acted properly in dispatching federal troops to quell the strikers, because the Constitution had pledged the power of the national government to preserve the social and economic order. The courts, Brewer concluded, had to protect property rights and this included the use of the contempt power to punish persons who refused to abide by injunctions. He disingenuously admonished Debs to seek social change through the ballot box.

Brewer in the post-Debs era retreated into strict construction. This narrowing of his constitutional jurisprudence occurred at a time when most of the other Justices embraced the moderate middle class reformist ethos of the Progressive movement. Brewer, Chief Justice Fuller, and Justice rufus peckham emerged as the conservative right wing of the Court.

Brewer disparaged Congress's resort to enumerated powers to accomplish purposes not originally contemplated by the Framers. This contrasted sharply with his opinion in Debs. He dissented with Chief Justice Fuller in champion v. ames (1903) on the ground that an act of Congress regulating interstate sale of lottery tickets threatened to destroy the tenth amendment. More than issues of federalism troubled Brewer; his opinion reflected a socioeconomic agenda aimed at protecting property rights. In South Carolina v. United States (1905) he spoke for the Court in holding that the federal government could place an internal revenue tax on persons selling liquor, even though those persons acted merely as agents for the state. Brewer argued that state involvement, free from the federal taxing power, in private business would lead inexorably to public ownership of important segments of the economy.

Brewer championed the concept of freedom of contract. He first articulated it for the Court in Frisbie v. United States (1895), and he joined with the majority two years later in allgeyer v. louisiana when it struck down a Louisiana law affecting out-of-state insurance sales. Although the Court subsequently applied the concept unevenly, Brewer dogmatically clung to it. Between holden v. hardy (1898) and McLean v. Arkansas (1909), Brewer routinely opposed state and federal laws designed to regulate labor. The single exception was muller v. oregon (1908), and Brewer's opinion for a unanimous Court in that case ironically contributed to the new liberalism of the Progressive era.

louis d. brandeis in Muller submitted a massive brief based on extensive documentary evidence about the health and safety of women workers. It openly appealed to judicial discretion, and Brewer took the opportunity to infuse his long-held views of the dependent condition of women into constitutional doctrine. He denied an absolute right of liberty of contract; instead he concluded that under particular circumstances state legislatures might intervene in the workplace. The supposed physical disabilities of women provided the mitigating circumstances that made the Oregon ten-hour law constitutional. He emphatically argued that the Court had not retreated from substantive due process. Nevertheless, the Muller decision and the brandeis brief encouraged constitutional litigation that three decades later shattered Brewer's most cherished conservative values.

The son of a Congregationalist minister and missionary, Brewer never lost touch with his Puritan sense of character and obligation. His jurisprudence forcefully, although naively, proclaimed that material wealth and human progress went hand in hand.

Kermit L. Hall
(1986)

Bibliography

Cramer, Ralph E. 1965 Justice Brewer and Substantive Due Process: A Conservative Court Revisited. Vanderbilt Law Review 18:61–96.

Paul, Arnold M. 1969 David J. Brewer. Pages 1515–1549 in Leon Friedman and Fred L. Israel, eds., The Justices of the Supreme Court, 1789–1969. New York: Chelsea House.