Gray, Horace (1828–1902)

Author:Charles W. Mc Curdy

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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

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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...

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