Ken Burns’ “Prohibition” premiered on PBS last night, and today is the first Monday in October—Day 1 of the Supreme Court’s October 2011 term. Here’s something totally apposite!
In 1889, President Benjamin Harrison nominated David Brewer, a Turkish-born veteran jurist from Kansas, to succeed the deceased Justice Stanley Matthews. This didn’t please the Union Prohibitory League of Pennsylvania, whose stationery declared that “we are, and will forever be, free from the dominion of the liquor power, and demand that all political connection between the saloon and the State, through whatever political party . . . be forever totally dissolved.”
Why did the Prohibitory League target David Brewer, whom one scholar has described as “one of the most unabashedly religious men ever to sit on the Court?” He was born of Congregationalist missionaries and was an active church member until his death. While on the Supreme Court, he taught Sunday School, publicly addressed religious groups, contributed to Christian periodicals, and wrote such books as The Pew to the Pulpit: Suggestions to the Ministry from the Viewpoint of a Layman (1897) and The United States: A Christian Nation (1905).
The League articulated its concerns in a resolution forwarded to President Harrison, Vice President Levi Morton, Pennsylvania’s U.S. Senators, and all members of the “Senate Committee on Confirmations”:
“Whereas, The said David J. Brewer, when a member of the Supreme Court of the State of Kansas, and also when United States Circuit Judge for the District of Kansas, rendered opinions and decisions adverse to prohibitory legislation, which decisions were subsequently reversed by the Supreme Court of the United States; and
Whereas, Questions involving prohibitory legislation must occupy the attention of the Supreme Court of the United States in future [sic], and any reversal of favorable decisions heretofore rendered would be a great calamity to the country; therefore,
Resolved, That we, citizens of the United States, resident in Philadelphia and vicinity, most respectfully but earnestly protest against the confirmation of the said David J. Brewer to be a member of the Supreme Court of the United States.”
Specifically, Brewer had ruled as a circuit judge that states enacting prohibition laws had to compensate liquor manufacturers and merchants for the loss of their property or else violate the 5th Amendment’s Takings Clause. Brewer’s approach to the issue was at least plausible, especially since the Supreme Court had never decided a prohibition case. The Court overturned Brewer-like prohibition rulings in Mugler v. Kansas (1887) with only one dissenting vote. The first “Whereas” above seems to suggest that the near-unanimous rejection of Brewer’s theory reflects poorly on his judicial competence and reveals a result-oriented philosophy of adjudication. The next “Whereas” clearly envisions that Brewer will ignore the Mugler precedent—indeed, will actively seek its reversal. Even were that so, Richard Hamm has noted, late 19th-century prohibitionists’ “fanciful ideas that the appointment of one justice would somehow bring about the reversal of the -1 Mugler decision underscored the radical prohibitionist misconceptions about appellate judging, misconceptions that hindered their application of legal means to their reform.”
Here’s the resolution’s cover letter (Vice President Morton’s copy):
A summary of it all: