David Josiah Brewer

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After a short period of work at a law firm in Leavenworth, Brewer began a legal practice of his own with a partner.: 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.: 9 : 905  He continued to practice law, and he served as a second lieutenant in the local militia during the Civil War.: 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.: 1516  Although he was only twenty-five years old, he won the election.: 10, 12  As a judge, Brewer punished criminals harshly; despite his inexperience, he quickly gained a reputation as a competent jurist.: 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.: 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.: 13–14  Brewer was elected county attorney in 1868, serving until 1870; he also resumed the private practice of law.: 19–20

In 1870, the state's Republicans unexpectedly nominated Brewer instead of incumbent Justice Jacob Safford for a seat on the Kansas Supreme Court.: 22  In the heavily Republican state, Brewer won the general election handily; he was easily reelected in 1876 and 1882.: 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".: 252  In a landmark women's rights decision in Wright v. Noell, 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.: 1516–1517 : 252  Brewer rendered rulings that were sympathetic to Native Americans, and he emphasized the best interests of the child in child custody cases.: 41, 43

In Board of Education v. Tinnon, the court ruled 2–1 that the city of Ottawa, Kansas, could not lawfully segregate its schools.: 1200  Justice Daniel M. Valentine's majority opinion concluded that local school boards had no authority beyond the powers expressly given to them by state law; since state law did not expressly authorize school boards to create separate schools for blacks and whites, he determined that segregation in Ottawa was not permissible.: 330  In what the law professor Andrew Kull characterized as an "angry dissent", Brewer disagreed.: 1200  He maintained that school boards could act without explicit authorization from the legislature, and he also argued that racial segregation did not violate the Fourteenth Amendment to the U.S. Constitution, writing that "each State has the power to classify school children by color, sex, or otherwise, as to its legislature shall seem wisest and best".: 330  In his biography of Brewer, the historian Michael J. Brodhead maintained that the justice's reasoning was "not overtly racist" and rested instead on his long-standing support for local self-governance;: 44  the legal scholar Arnold M. Paul, by contrast, argued that the opinion exhibited "an insensitivity to social problems ... combined with a simplistic legal formalism".: 1517

According to Paul, cases in the 1880s involving Kansas's prohibition of alcohol "mark the decisive turning points in Brewer's shift to hard-line conservatism".: 1517  In State v. Mugler, a brewer challenged a state law that forbade the manufacture of beer, arguing that it deprived him of his property without due process of law.: 1517  The court ruled against him on the basis that the law fell within the state's police power.: 1517  Although Brewer did not formally dissent, he expressed his reservations about the majority's conclusions, suggesting that the law in effect deprived the brewer of his property without just compensation.: 38  Brewer's opinion in Mugler presaged the protective attitude toward property rights that he later displayed on the U.S. Supreme Court.: 203

When Judge John F. Dillon resigned in 1879, several state officials encouraged President Rutherford B. Hayes to nominate Brewer to the ensuing vacancy on the United States circuit court for the Eighth Circuit.: 52  George W. McCrary was appointed instead, but when McCrary resigned in 1884, President Chester A. Arthur nominated Brewer to take his place.: 6–8  Brewer characterized the Eighth Circuit as "an empire in itself": it encompassed Arkansas, Colorado, Iowa, Kansas, Minnesota, Missouri, and Nebraska, to which North Dakota, South Dakota, and Wyoming were added several years after his appointment.: 53  As a circuit judge, he heard a wide variety of cases, including federal civil disputes, matters arising under the court's diversity jurisdiction, and the occasional criminal prosecution.: 53–54

In Chicago & N.W. Railway Co. v. Dey, a railroad company argued that the rates set by the Iowa Railroad Commission were unreasonable and should be enjoined.: 1519  Despite the Supreme Court's 1877 decision in Munn v. Illinois that legislatures had the authority to determine whether rates were reasonable, Brewer ruled in the railroad's favor, issuing a preliminary injunction on the grounds that it was unlawful to impose rates that did not adequately compensate the company.: 1519  Paul argued that the decision was squarely at odds with Munn,: 1519  although Brodhead maintained that such claims are "at the very least misleading" since Brewer later lauded the commission and upheld the rates.: 56  In another Kansas prohibition case, State v. Walruff, Brewer firmly reiterated the position that he had expressed in Mugler, appealing to "the guarantees of safety and protection to private property".: 1518  Citing this case and others, Paul commented that the future justice's "growing conservatism was manifest in his circuit court days".: 1518

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