ARTICLE: THE JUDGE WHO ABSTAINED IN PLESSY v. FERGUSON: JUSTICE DAVID BREWER AND THE PROBLEM OF RACE Skip over navigation
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Copyright (c) 1991 Mississippi Law Journal
Mississippi Law Journal

ARTICLE: THE JUDGE WHO ABSTAINED IN PLESSY v. FERGUSON: JUSTICE DAVID BREWER AND THE PROBLEM OF RACE

Fall, 1991

61 Miss. L.J. 315

Author

J. Gordon Hylton *

Excerpt

The final line of the United States Supreme Court opinion in the landmark case of Plessy v. Ferguson states, "Mr. Justice Brewer did not hear the argument or participate in the decision of this case." 1 Because of the untimely death of his daughter, the 58-year old Justice had been forced to leave Washington, D.C. for his home in Leavenworth, Kansas, on April 13, 1896, the day Plessy was argued before the Court. 2 Without Brewer, the Court voted 7 to 1 to uphold Louisiana's "separate but equal" public accommodations law. Only Justice John Marshall Harlan, a former slaveholder from Kentucky, agreed that the challenged "Jim Crow" statute violated the Fourteenth Amendment's guarantee of equal protection of the laws. 3

A general familiarity with the personal background and constitutional views of David Josiah Brewer might have led one to believe that had the Kansan been present, he would have joined in Harlan as a second vote against the challenged ordinance. The son of an abolitionist clergyman, Brewer had enlisted in the cause of antislavery as a youth, and in 1858, at age 21, had joined the migration of antislavery New Englanders to "Bloody Kansas." 4 As a judge in Reconstruction era Kansas, he had authored one of the first judicial opinions upholding the right of an African-American citizen to vote in a general election, and as the superintendent of schools in Leavenworth, he had helped establish the first schools for blacks in the state. Furthermore, since joining the United ...
 
 
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