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Gray, Horace

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Birth: March 24, 1828, Boston, Massachusetts.

Education: Harvard College, A.B., 1845; Harvard Law School, 1849.

Official Positions: Reporter, Massachusetts Supreme Judicial Court, 1854–1864; associate justice, 1864–1873; chief justice, 1873–1881.

Supreme Court Service: Nominated associate justice by President Chester A. Arthur, December 19, 1881, to replace Nathan Clifford, who had died; confirmed by the Senate, December 20, 1881, by a 51–5 vote; took judicial oath January 9, 1882; served until September 15, 1902; replaced by Oliver Wendell Holmes Jr., nominated by President Theodore Roosevelt.

Death: September 15, 1902, Nahant, Massachusetts.

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Horace Gray
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Horace Gray

No other Supreme Court justice was quite so “well-born” as Horace Gray. In the early 1800s his grandfather, William Gray, was the richest man in New England. Although he suffered from Thomas Jefferson's 1808 embargo, French and British seizures of his ships, and the War of 1812, William Gray strongly supported the war effort. Becoming a Jeffersonian, he was twice Massachusetts's lieutenant governor. Out of his own pocket, he provided daily relief to the poor and, when the government was nearly broke, paid for refurbishing the U.S.S. Constitution, so she could fight. After William died in 1820, his son, Horace Gray, ran the family's businesses well for two decades, but then shifted too much capital from shipping into high-risk iron mill investments that folded during a business slump. His son, Horace—the future Supreme Court justice—graduated at seventeen from Harvard and learned during a European tour soon after that his family's wealth had abruptly disappeared.

Facing these difficulties, young Gray studied law assiduously at Harvard and joined the antislavery Free Soil Party in 1848. Soon after he had a stroke of luck (or rather, of luck and family connections). At twenty-six, while building a profitable legal practice, he was appointed reporter of the Massachusetts Supreme Judicial Court. He continued both activities for nine years, joining the Republican Party and gaining wide attention for an 1857 Monthly Law Review article that devastated the historical contentions of Chief Justice Roger Taney's proslavery Dred Scott opinion.

In 1864 he was appointed to the Massachusetts high court and in 1873 became its chief justice. In his seventeen years on this court, he wrote 1,367 opinions, only one of which was in dissent. On recommendations from Gray's longtime friend, Sen. George Hoar, R-Mass., and from Justice Samuel Miller, President Chester Arthur nominated Gray to the U.S. Supreme Court. There, while maintaining homes in Washington, Boston, and on the Massachusetts seashore, he served for twenty-one years and wrote 451 opinions. He wrote only ten dissents—a circumstance that later led to an incorrect assessment of his judicial influence by scholars who overlooked when he did, and when he did not, join in the dissents of others.

At Gray's 1902 funeral, Chief Justice Melville Fuller likened his accomplishments to those of another Massachusetts chief justice, Lemuel Shaw, and two earlier holders of Gray's Supreme Court seat, Joseph Story and Benjamin Curtis: “He will be ranked with them without appreciable interval.” In 1909 Harvard law professor Samuel Williston, a former Gray law clerk, repeated the prediction. History has been somewhat less appreciative. In 1961 doctoral candidate Stephen Robert Mitchell put Gray “just below the top rung in the judicial ladder.” In 1992 history professor John Semonche seemed more impressed by Gray's formalism in manners and writing style than by his substantive contribution. Gray's constitutional opinions—staples of legal textbooks well into the New Deal era—have almost vanished from recent casebooks, while those of Story and Curtis are still included.

Gray's constitutional opinions had three main themes. The first was support of substantial and effective national government power, but not too much. He endorsed congressional power in both wartime and peacetime to make paper money legal tender in Julliard v. Greenman (1884); held that Congress may by statute override an earlier treaty and provide for summary detention and expulsion of aliens in Fong Yue Ting v. United States (1893); and ruled that Congress had power, without regard to the Fourteenth Amendment's state action limitation, to provide for punishing persons who deprive citizens in the custody of federal marshals of their civil rights in Logan v. United States (1892). But he drew the line when Congress attempted to enact a peacetime income tax (Pollock v. Farmers' Loan and Trust, 1895), or tried to exert commerce clause power over manufacturing that only indirectly affected interstate commerce (United States v. E. C. Knight Co., 1895).

The second theme was that states had fairly ample police powers to regulate the economy. In the absence of contrary federal law, a state could require nondiscriminatory railroad rates on journeys beginning within the state even if the destination were out-of-state (concurrence with Joseph Bradley's dissent in Wabash, St. Louis, and Pacific Railroad Co. v. Illinois, 1886); prohibit importation and sale of liquor (dissent in Leisy v. Hardin, 1890); and could levy a tax based on the railroad's in-state proportion of total track mileage, regardless of how much or little its cars traveled in state (Pullman's Palace Car Co. v. Pennsylvania, 1891). But here, also, Gray would not allow states unlimited powers. A state could not, after the railroad built a bypass, require an interstate passenger express to go three miles out of its way on the old track to stop at a county seat (Illinois Central R. Co. v Illinois, 1893), nor would a writ of mandamus serve to compel a railroad to put a stop where it passed through a Washington county seat—Yakima—after the railroad decided it could make more money by platting a new town four miles away on its own land, stopping trains there instead, and depopulating Yakima (Northern Pacific Ry. v. Washington, 1892).

The third theme pertained to individual rights. Under the Fourteenth Amendment, persons born in the United States, except Indians living in tribes or separately but not taxed, were citizens regardless of race. Congress could not, pursuing an anti-Chinese immigration policy, deny reentry to the San Francisco-born son of Chinese aliens (United States v. Wong Kim Ark, 1898).

Gray also insisted that the government respect Indians' treaty-acquired property interests. In lengthy 1863 negotiations, Chippewa chief Moose Dung expressed a desire for a 640-acre set-aside for him and his heirs: “I have taken the mouth of Thieving River as my inheritance.” The federal negotiator, a Minnesota senator, seemingly exasperated, or thinking the United States was “thieving” enough Indian land for the day, directed the interpreter, “Tell him I don't care anything about the mouth of Thieving River. He can have it.” Whereupon Moose Dung optimistically said, “I accept …. because …. I am going to be raised from want to riches …. to the level of the white man.” Gray held that an 1894 congressional resolution giving the interior secretary power to oversee the rental terms of that land, which was by then urbanized and valuable, collapsed before the vested right of Moose Dung's son (known as Moose Dung the younger) to lease as he pleased (Jones v. Meehan, 1899).

Although Gray agreed with Plessy v. Ferguson (1896) that state-required racial segregation in intrastate rail transportation was constitutional, a local practice of excluding blacks from state court grand juries, neither prohibited nor prescribed by state law, was unconstitutional (Carter v. Texas, 1900). For Gray, due process pertained primarily to criminal procedures, and he initially viewed the doctrine of substantive due process as unsound (Head v. Amoskeag Manufacturing, 1885). The Fourteenth Amendment's due process clause did not incorporate the Bill of Rights and make all its provisions applicable to states, which therefore could reduce jury size from twelve to eight. But in federal trials, the Seventh Amendment's guarantee of a trial by jury meant what it historically did in English common law—twelve jurors and a judge (Capital Traction v. Hof, 1899). Nor should a judge tamper with historically mixed allocations of powers to decide questions of law and fact by instructing jurors in a way that limited their freedom in deciding whether the circumstances indicated murder or manslaughter (sixty-page dissent in Sparf v. United States, 1895).

Many of Gray's positions, particularly regarding government and the economy, were more consistent with New Deal views of good constitutional results than with the strong laissez-faire judicial activism of the Lochner v. New York (1905) era. Why then did the apparent slide in Gray's perceived importance occur? One reason is that some decisions thought important at the time were analytical derivations from another judge's earlier “head” opinion, which survives better. For example, Logan largely derives from Justice Miller's opinion in Ex parte Yarbrough (1884), a “structural” argument that, quite apart from Fourteenth and Fifteenth Amendment demands for fair, nondiscriminatory state behavior in elections, the Constitution's requirement of periodic federal elections entails sufficient federal power to reach individuals' discriminatory behavior hindering other citizens' voting.

A second reason is that it is not Gray's methods and substantive jurisprudence that have changed, but rather succeeding generations' standards of greatness. Standards of late nineteenth-century elite lawyers, trained when Langdellian (Harvard law professor Christopher Columbus Langdell introduced the “case method” to the study of law) legal analysis searched for scientifically objective, formal symmetries thought to underlie the case law, fit well with Gray's preferred decision-making method. His seemingly neutral method soft-pedaled cases' public policy implications. Late twentieth-century standards tend to prize policy explicitness in the constitutional interpretations of activist and passivist judges alike.

A third reason for Gray's decline in reputation pertains to the fields of law thought more and less important to the analysts. For Professor Williston in 1909 race relations and labor rights scarcely rose to the level of consciousness, but international law, the law of charitable trusts, and admiralty law were close to center stage. Much of Gray's contribution lay in the latter fields.

Gray's preferred method and fields of interest were well displayed in what Williston considered two great Gray opinions—Liverpool and Great Western Steam v. Phenix Insurance (1889) and Hilton v. Guyot (1895). Gray sought out precedents exceedingly far back and then wrote exceedingly long historical essays finding the answers in those precedents. Liverpool took sixty-seven pages and citations of more than eighty American, British, Dutch, French, and Italian cases and commentaries to “find” that American law, which held invalid clauses in shipping contracts exempting a common carrier from liability for employee negligence, prevailed over British law (which held the opposite) where the bill of lading was drawn up in New York by a British ship company's agent for goods bound from New York to Liverpool but lost when the ship sank in a Welsh bay just short of its destination.

Gray's majority opinion in Guyot held that because the French judicial system treated other “civilized” countries' court judgments as prima facie evidence in—but not conclusive on—related French court proceedings, then American courts could retry on the merits French judgments on American-owned companies with Paris offices. Gray produced a 100-page examination of a 1629 French royal ordinance down through two and a half centuries of the cases and commentaries of twenty-two countries.

Like his predecessor, Morrison Waite—who once wistfully wrote to Gray, “Can't you tell me the secret of your style. I wish I had it”—Chief Justice Fuller was frequently persuaded by Gray's meticulous analytic powers. His character, despite its stiffness, attracted several other justices. John Marshall Harlan joked to Waite that Gray's idea of a vacation was searching for precedents in British Columbia. But Waite at age sixty-nine really wanted the company of Gray (a keen hiker) and Gen. William Tecumseh Sherman (good at expeditions) on an 1883 Montana trip where they “slept …. on the ground.… The thermometer went …. below freezing …. had breakfast at five …. eggs and lambchops …. superb morning.”

Gray in fact had considerable power within the Court. Vacationing in Europe, one of the clearly great justices, Stephen Field, wrote to another, Joseph Bradley, about unwanted Gray impact on their colleagues' thinking. Field urged that Bradley write a very strong dissent in the Pullman-Pennsylvania tax case and pledged “to co-operate with you …. to defeat the manifest purposes of Gray to overturn our interstate commerce decisions.” He also vowed “to purchase a one-horse landau” so that he and Bradley could have strategy chats going to and from Court conferences.

But how much power did Gray have, and to what societal ends did he use it? One scholarly misconception infers from Gray's low number of written dissents relatively low power. A misreading of primary sources led another scholar to state that Gray's “closest friends …. found attitudes which bordered on prejudice …. but never so far as can be discovered, committed …. to writing.” The friends, however, probably were not referring in modern fashion to ethnic prejudice (which most of Gray's Brahmin friends shared) but, in nineteenth-century usage, to Gray's being opinionated. In any event, Gray's prejudices or, rather, his Anglo-centered point of view can be found, with a little searching, in his writing, for example, in an unintentionally funny opinion about customs duties on imported tomatoes.

In Nix v. Hedden (1893), the importer argued tomatoes were fruits and should enter duty-free. The government insisted they were vegetables and imposed a 10 percent tariff. Gray's favored 100-page historical solution would not work, as only one dubious precedent was available—beans were not seeds in a pod (Robertson v. Salomon, 1889). Into Court came dictionaries and experts. Discussion was inconclusive. Then Gray had one of his most original—if Anglo-culture-bound—jurisprudential ideas. Look not to definitions or botany, but to the tomato's societal functions. Said he, tomatoes “are usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” Tomatoes, therefore, are vegetables and taxable.

Gray wrote this cultural-anthropological silliness a few days before his Fong Yue Ting majority opinion further displayed his underlying social attitudes (and not just, it appears, his deference to Congress). Fuller, Field, and David Brewer dissented, the latter saying: “In view of this enactment of the …. foremost Christian nation, may not the thoughtful Chinese disciple of Confucius fairly ask, ‘Why do they send missionaries here?’”

By today's standards, these justices were prejudiced, but the question to ask is what else came with, or offset, these upper-class Anglo-Saxon prejudices and also drove their decision making. Comparing Gray on this score with Brewer, generally now remembered only as the Court's staunchest advocate of substantive due process; Henry Billings Brown, author of Plessy, who later said he thought Harlan's dissent might have been right; and Bradley, who, dead before Plessy, had joined Harlan's dissent in its 1890 precursor, Louisville, New Orleans, & Texas Railroad Company v. Mississippi, suggests a final cause of Gray's decline in reputation—his lack of empathy for less-fortunate mortals, his icy, precedent-cloaked judicial passivity.

For example, where Gray let the Northern Pacific Railway devastate Yakima economically, Brewer in dissent objected that the railroad “locates its depot on the site of a ‘paper town’; and for private interests, builds up a new place at the expense of the old.… A railroad corporation has a public duty to perform as well as a private interest to subserve.… I never before believed that the courts would permit it to abandon the one to promote the other.”

With respect to First Amendment freedoms, one searches Gray's jurisprudence in vain for anything like Bradley's lone dissent in the Court's earliest free speech case, Ex parte Curtis (1882). Objecting to an 1876 statute prohibiting federal employees from soliciting, giving, or receiving money for electoral campaigns, Bradley said bluntly: “The freedom of speech and of the press, and that of assembling together to …. discuss matters of public interest …. are expressly secured by the Constitution.” That Congress could impose, as a condition of taking employment, entire silence on political subjects struck him as “absurd. Neither men's mouths nor their purses can be constitutionally tied up in this way.” Instead, one finds an 1896 obscenity prosecution, Swearingen v. United States, in which the Court majority held the publication not obscene, while Gray and three others voted it was, but without explanation.

With respect to treatment of nonwhite ethnic groups, Gray's opinions contain nothing to compare with Brown's condemning the army for firing on unarmed Native Americans in a forced relocation march (Conners v. United States, 1901). Moreover, with respect to the rights of working-class whites, despite Gray's historical legal learning, he wrote nothing like Brown's essay in Holden v. Hardy (1898) upholding Utah's eight-hour maximum workday for miners, with its sweeping sense of American law's dynamism over the course of the nineteenth century, its realization that changes in industrial techniques required changes in worker-protective legislation, and its realistic analysis of corporation-labor relations.

More typical of Gray's judicial activities as they bore upon less-fortunate groups, and on how the costs and profits of industrialization should be distributed among Americans, was his role concerning expansion or contraction of the “fellow servant rule,” then a hotter social justice issue than legislation on working hours. Gray's Massachusetts predecessor, Lemuel Shaw, had held in 1842 that each worker, and not the employer, assumed the risk for the negligence of his coworkers, his “fellow servants”—a convenient rule for the entrepreneurial class, but not for the injured worker whose negligent fellow servant was usually too poor to pay much of a recompense. By the 1870s state legislatures were overturning this judge-made rule. Indeed, Gray, while on the Massachusetts court, originated a rule making the employer liable for unsafe working conditions (Coombs v. New Bedford Cordage, Massachusetts, 1869).

Gray's Supreme Court role respecting the fellow servant rule was different. It has, seemingly, been camouflaged by the received scholarly wisdom about dissent on the Court of the Gilded Age that, looking only at written dissents, characterizes Harlan and Field as the “great dissenters.” But such a view overlooks not only the tactical value of mutely joining others' dissents but also the difference between the self-expressive value of a solo dissent and the strategic value of appearing to be a consensus-builder, rather than a cantankerous loner, by dissenting only when at least one other justice wants to do so.

Limiting the analysis to cases with two or more dissenters produces a different picture of the Court during Gray's first half-decade. Gray emerges as the leader of the dissenter pack in cases where one justice paired with another in multiple-dissent cases. Gray joined in thirty-seven dissenting pairs, followed by Harlan joining in thirty-four pairs, Bradley in thirty-one, Waite in twenty-nine, and Field—exactly in the Court middle—in twenty-eight. During the first half of the 1890s, however, Gray's frequency of pairing in dissent dropped to the Court middle, while the dissent-pairings of the only two Civil War and Reconstruction-era appointees still alive in 1895 (Field and Harlan) leapt to the top.

What was happening? First, Gray's persuasive impact seemed to be even stronger than when Field expressed his worries to Bradley. Second, a frequent cause of dissent pairings on the later Waite Court had been occasioned by Field's limiting the scope of the fellow servant rule over Bradley's objections (on this they disagreed) joined by Gray and two other 1880s appointees. By the 1890s, as the Civil War-era appointees died, Gray's viewpoint was winning out. By 1897 he was ready to move from debate in chambers and concurring in dissents to writing an expansion of the rule. In Alaska Treadwell Gold Mine v. Whelan, Gray ruled that a foreman, even if he had the power of hiring and firing employees under him, was not a company supervisor but a fellow servant of the worker who had been injured by the foreman's negligence. Gray overruled the Alaskan jury and the appeals court, returning to the mining company the award to the injured worker.

Such—a half-century distant from Horace Gray's 1848 days in the Free Soil Party—was his purportedly neutral 1890s jurisprudence. Too much was morally gray in it, and too little in him was William Gray.


Samuel Williston, “Horace Gray,” in William Draper Lewis, ed., Great American Lawyers, vol. 3 (1907–1909), 189, is the best commentary by Gray's contemporaries. John C. Semonche offers a different view in his brief piece in Kermit Hall, ed., Oxford Companion to the Supreme Court of the United States (1992). Stephen Robert Mitchell's unpublished dissertation, “Mr. Justice Horace Gray” (University of Wisconsin, 1961), is the single best secondary source, but is analytically a bit wooden and often has too little distance from the biographical primary sources, including their wording.

Noteworthy Opinions

Julliard v. Greenman, 110 U.S. 421 (1884)

Liverpool and Great Western Steam v. Phenix Insurance, 129 U.S. 397 (1889)

Northern Pacific Railway v. Washington, 142 U.S. 492 (1892)

Logan v. United States, 144 U.S. 263 (1892)

Nix v. Hedden, 149 U.S. 304 (1893)

Fong Yue Ting v. United States, 149 U.S. 698 (1893)

Hilton v. Guyot, 159 U.S. 113 (1895)

Alaska Treadwell Gold Mine v. Whelan, 168 U.S. 86 (1897)

United States v. Wong Kim Ark, 169 U.S. 649 (1898)


Document Citation
Gray, Horace, in Biographical Encyclopedia of the Supreme Court 227 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18167-979253
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