GRAY, HORACE (1828–1902)

Horace Gray, Jr., reporter of the Supreme Judicial Court of Massachusetts (1854–1861) and Associate Justice (1864–1873) and Chief Justice (1873–1881) of the same court, was appointed to the United States Supreme Court in 1882 and served until his death twenty years later. Anglo-American legal history was his forte; he was the nation's leading judicial exponent of Harvard-style "legal science" during the second half of the nineteenth century. Like Dean Christopher Columbus Langdell, his Harvard classmate and lifelong friend, Gray viewed the law neither as the changing product of specific historical struggles nor as an imperfect reflection of "the spirit of the age" but rather as an array of immanent principles firmly rooted in a vibrant common law tradition. Consequently he insisted on a radical separation of law from politics, linking the former with reason and the latter with will and power. According to John Chipman Gray, his commitment to these central concepts of "legal science" was complete yet unreflexive. "My brother's historical knowledge was confined to a knowledge of legal precedents," he wrote in 1902. "In this sphere he was not only learned, but his treatment of historical matter was strong and broad: but, outside of that, he made and had no pretensions. He was neither a philosophical historian nor a political economist."

Gray's understanding of Anglo-American legal history produced an idiosyncratic style of judging with significant implications for constitutional interpretation. His treatise-like opinions were bereft of appeals to public policy or social advantage; because he assumed that the validity of legal rules was unrelated to particular historical contexts, Gray was virtually immune to both historicist and functionalist arguments against the constitutionality of legislation. In Wabash, St. Louis & Pacific Railway v. Illinois, (1886), Robbins v. Shelby County Taxing District (1887), and leisy v. hardin (1890), for example, he dissented when the majority invoked national market imperatives to invalidate state police regulations and tax laws of a sort that had never before run afoul of the commerce clause. Gray also resisted the majority's contraction of what he regarded as venerable sovereign immunity doctrines in United States v. Lee (1882) and the Virginia Coupon Cases (1885).

Gray's metahistorical approach to judging was especially apparent in Fourteenth Amendment cases. In Head v. Amoskeag Manufacturing Company (1884) and Wurts v. Hoagland (1885) he conceded that mill acts and drainage laws invariably disturbed valuable rights of property. In each case, however, Gray provided a lengthy digest of statutes to demonstrate that the several states had authorized compulsory flooding or drainage of property for one hundred years or more. It was simply too late, then, for the Court to suggest that such legislation took property either for private use or without just compensation in violation of the due process clause. Similar considerations prompted Gray's dissent in the landmark substantive due process case of chicago, milwaukee & st. paul railway v. minnesota (1890). And in Budd v. New York (1892), where the Court upheld a New York statute fixing rates of charge for grain storage, he supplied the majority's spokesman with a long memorandum "showing that the prices of necessary articles were controlled by the legislature, in England and America, at the time of the adoption of the State and National Constitutions." His authorities included Hening's statutes of colonial Virginia and a 1709 act of Parliament regulating coal prices.

Gray voted with the majority in every case involving the rights of racial minorities decided during his tenure on the Court. Yet his route to the results often differed substantially from that of his colleagues. If Gray had been assigned plessy v. ferguson (1896), for example, he would no doubt have supplied a thorough digest of state legislation, as well as acts of Congress pertaining to the district of columbia, in an attempt to show that racial classifications in "social" contexts had been just as common in American law after ratification of the fourteenth amendment as before. Legal history, not the conservative sociology that figured so prominently in henry b. brown's opinion or the natural justice to which john marshall harlan appealed in dissent, shaped Gray's construction of minority rights. Thus his associates were not surprised by his opinion in united states v. wong kim ark (1898), confirming the citizenship claim of a Chinese child born in the United States, even though he had also spoken for the Court in Elk v. Wilkins (1884), denying the same claim when filed by an American Indian who had left a government reservation and renounced all privileges of tribal membership. In Gray's view, the anomalous status of Indians as wards of the nation had already been fixed by nine decades of administrative usage. But the status of persons born of unnaturalizable aliens was a new question in American law. Consequently he assumed that Wong Kim Ark could be decided only after an examination of all the juridical authorities on birthright citizenship running back to calvin ' scase (1608).

It is ironic that Gray is best known as the probable "vacillating Justice" in pollock v. farmer ' sloan & trust co. (1895). We shall never know for certain whether he changed his vote on the validity of the income tax following the second hearing; but, as edward s. corwin observed, "the surprising thing would be not that Gray was the last Justice to line up against the act, but that he should have done so at all." Gray's extraordinarily broad construction of Congress's implied powers in United States v. Jones (1883), Juilliard v. Greenman (1884), and Fong Yue Ting v. United States (1893) underscored his constitutional nationalism. Yet he set a face of flint to howell e. jackson's claim, in dissent, that Pollock was "the most disastrous blow ever struck at the constitutional power of Congress." It is equally astonishing that a self-conscious practitioner of historical method concurred in an opinion that, as Corwin put it, "played ducks and drakes with the precedents." The unkind verdict of modern scholarship is that even Gray, a jurist for whom the separation of law and politics ordinarily served as the very touchstone for judging, succumbed in Pollock to the reactionary impulse that gripped the legal profession at large during the turbulent 1890s.

Charles W. Mc Curdy
(1986)

Bibliography

Corwin, Edward S. 1938 Court over Constitution. Princeton, N.J.: Princeton University Press.

Filler, Louis 1969 Horace Gray. Pages 1379–1389 in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1969: Their Lives and Major Opinions. New York: Chelsea House.