I believe at some point I have mentioned in this blog that David O'Brien authored a book about an unpublished opinion written by Justice Robert H. Jackson that would have served as a concurrence to the court's opinion in the famous 1954 case, BROWN v. BOARD.
The court's opinion was expressed in a unanimous vote and a single opinion by Chief Justice Earl Warren, declaring that the old rule that allowed "separate but equal" treatment in education facilities, i.e. segregation by race in schools, was a rule no longer. A follow-up decision the next year addressed the issue of remedy: it ordered states to desegregate their schools with all "deliberate speed." (Jackson was dead by that time.)
Jackson never published his concurrence because the Chief Justice lobbied hard to dissuade him from doing so. It was Warren's considered view that on a matter so pressing the Court must speak with one voice.
I bring it up again because I would like to offer a quotation from the unpublished opinion, which O'Brien kindly provides in full in his book.
This quote shows that Warren's insistence on NOT publishing it as a concurrence was wise.
Here it is:
The custom of a people has always been recognized as a powerful law-maker. Widespread usage has reinforced the view of legislators and educators and the opinions of the courts. This Court, in common with courts everywhere, has recognized the force of long custom and has been reluctant to use judicial power to try to recast social usages established among the people.
Of course, since you know that this was intended as part of a concurrence, you have probably figured out that this passage is not the last word, and that custom is not allowed to HAVE the last word, in the opinion. But one can easily image the segregationists quoting it with glee had it been published in 1954, and citing it (from a liberal, Rooseveltian, New Yorker of a Justice) as proof of their own contention that the "long custom" of segregating whites and blacks, must continue to be respected as a powerful "law maker." They would have treated these words as a dissent, authorial intent be damned.
Since Jackson was writing a concurrence rather than a dissent, Jackson might have written a strong opinion on why "separate but equal" was so wrong that it should override custom. Nevertheless, I agree with you that it is good that he did not, for two reasons. One is Warren's reason that the Court should speak with one voice in this case. The other reason is that, no matter how strong Jackson's condemnation of "separate but equal" was, his concurrence would have acknowledged an opposing view -- the importance of custom -- which, as you say, the segregationists would have quoted with glee.
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