The Volokh Conspiracy

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Justice Breyer Takes a Flood v. Kuhn-Esque Detour On Boston Architecture

"Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style."


Today, the Supreme Court decided 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 speech. The First Circuit agreed. The Supreme Court unanimously reversed.

Chief Justice Roberts assigned the majority opinion to Justice Breyer. This assignment makes sense. Breyer wrote the majority opinion in Walker v. Texas Division, Sons of Confederate Veterans. And Breyer is very much a son of Boston. He no doubt walked down Cambridge Street many times, and saw the flags flapping in the wind. That experience no doubt informed the first paragraph of Part I-A of the majority opinion:

The flagpole at issue stands at the entrance of Boston City Hall. See Appendix, infra. Built in the late 1960s, Boston City Hall is a raw concrete structure, an example of the brutalist style. Critics of the day heralded it as a public building that "articulates its functions" with "strength, dignity, grace, and even glamor." J. Conti, A New City Hall: Boston's Boost for Urban Renewal, Wall Street Journal, Feb. 12, 1969, p. 14. (The design has since proved somewhat more controversial. See, e.g., E. Mason, Boston City Hall Named World's Ugliest Building, Boston Herald (Nov. 15, 2008),

Breyer no doubt has the expertise to comment on the architectural style of Boston City Hall. After all, he is a juror for the Pritzker Architecture Prize. But this passage has absolutely nothing to do with the legal issue at hand. Nothing. (Well, "brutalist style" may describe how Justice Gorsuch savaged the Lemon test–more on that concurrence later.) This frolic and detour has no place in the U.S. Reports.

These sentences remind me of Justice Blackmun's opinion in Flood v. 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 most remembered for Part I, which paid tribute to famous baseball players. He even quoted Casey at the Bat. This lengthy discussion was completely gratuitous and irrelevant to the legal issues at hand. In response, Justices White and Chief Justice Burger dissented from Part I of the majority opinion:

MR. JUSTICE WHITE joins in the judgment of the Court, and in all but Part I of the Court's opinion.

MR. CHIEF JUSTICE BURGER, concurring. I concur in all but Part I of the Court's opinion . . .

I would have dissented from Justice Breyer's discussion of architecture.

Justice Breyer had one more reference from Fenway, that Justice Sotomayor may have considered dissenting from:

Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.