Judge Breyer takes a detour to Flood v. Kuhn-Esque on Boston Architecture

Today the Supreme Court ruled Shurtleff v. City of Boston. Here, Boston allowed many private groups to raise flags at City Hall, but rejected a flag that included a cross. The city argued that the flag-raising program was government talk. The first circuit accepted. The Supreme Court unanimously overruled.

Chief Justice Roberts attributed the majority opinion to Justice Breyer. This mission makes sense. Breyer wrote the majority opinion in Walker v. Texas Division, Son of Confederate Veterans. And Breyer is truly a son of Boston. He has undoubtedly walked down Cambridge Street several times and seen the flags flapping in the wind. This experience arguably informed the first paragraph of Part IA of the majority opinion:

The flagpole in question stands at the entrance to Boston City Hall. See Appendix, below. Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the Brutalist style. Critics at the time heralded it as a public building that “articulates its functions” with “strength, dignity, grace and even glamour”. J. Conti, A New City Hall: Boston’s Boost for Urban Renewal, Wall Street Journal, February 12, 1969, p. 14. (The design has since proven to be a bit more controversial. See, for exampleE. Mason, Boston City Hall Named World’s Ugliest Building, Boston Herald (November 15, 2008), https://www.bostonherald.com/2008/11/15/boston-city-hall-named-worlds-ugliest-building. )

Breyer undoubtedly has the expertise to comment on the architectural style of Boston City Hall. After all, he is a member of the jury for the Pritzker Architecture Prize. But this passage has Absolutely nothing to do with the ongoing legal issue. Nothing. (Well, “brutalist style” can describe how Judge Gorsuch savagely Lemon test – more on that deal later.) This frolic and detour have no place in US reporting.

These sentences remind me of Justice Blackmun’s opinion in Flood against Kuhn. This case upheld the antitrust exemption for Major League Baseball. (Former Justice Goldberg argued on behalf of baseball player Curtis Flood.) Justice Blackmun’s opinion is perhaps best known for Part I, which honored famous baseball players. He even quoted Casey at the bat. This lengthy discussion was completely gratuitous and unrelated to the legal issues involved. In response, Justices White and Chief Justice Burger disagreed with Part I of the majority opinion:

SIR. JUDGE WHITE concurs with the judgment of the Court and with all the Opinions of the Court except Part I.

SIR. CHIEF JUSTICE BURGER, okay. I agree with all but Part I of the Court’s opinion. . .

I would have disagreed with Justice Breyer’s discussion of architecture.

Judge Breyer had another reference from Fenway, which Judge Sotomayor may have considered dissenting:

Boston couldn’t easily congratulate the Red Sox on a win if the city was powerless to refuse to simultaneously convey the opinions of disappointed Yankees fans.

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