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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.

NEXT: Rape Victim Asks Court to Retroactively Redact Name from 16-Year-Old Opinion

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  1. The problem with people who criticize Boston City Hall is that they place too much emphasis on form and function.

    1. Brutalist means, cheapass, ugly, nasty Stalinist style. It means, dirty Commie style. Zero tolerance for Commie in architecture.

    2. This is both brilliant humor and a test for neuro-atypicality. Well done!

  2. Au contraire. If Cato could say "Cartago delenda est" every time he spoke in the Roman Senate, on whatever topic, then Supreme Court justices should include a rant about the ugliness of Boston City Hall is every time they they find a way to work it into an opinion.

    1. Cato did preface each utterance with, "and that reminds me", which is more difficult to argue with as he never presented the evidence for why the subject under discussion reminded him lol

  3. I'll just leave this here.

    In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there any more. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that when a batsman hits a six the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at week-ends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the judge to stop the cricket being played. And the judge, much against his will, has felt that he must order the cricket to be stopped: with the consequence, I suppose, that the Lintz Cricket Club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

    1. I identified that as Lord Denning before the end of the first sentence! I was lucky enough to meet him once, when he was the guest of honour at our college law society.

  4. I think it’s being just plain mean not to let Justice Breyer get in a few harmless extra sentences about his home town of Boston in one of his last opinions before he retires.

    Look, there are plenty of comments on Conspiracy posts by right-wing people holding feminists and such to redicule for having no sense of humor and for getting all bothered and offended by harmless idiosyncracies.

    Shouldn’t something be said when somebody on the right does the same?

    1. Well, he didn't have any bizarrely gratuitous swipes at Roberts. Baby steps.

  5. I wonder if this case and opinion won't create additional problems. I don't know what 50 different flags were flown at Boston City Hall. I do think it likely will attract some people looking create a controversy for their own favored position.

    I'd imagine an Israeli, Palestinian, Russian, BLM or Islamic flag might attract a some controversy.

    Let us suppose that someone like David Duke, looking to promote his grift as he has for decades decided to have and event in the plaza and wished to raise a Confederated or even a Nazi flag.

    I use David Duke as an example because he and I attended LSU at the same time (along with around 20,000 other students) and I observed him on campus speaking about his views flanked by two literal brown shirts.

    1. This case vindicates the point that the gullible and superstitious have rights, too. Why should the bigoted, reviled, and/or obnoxious should not have the same rights as the gullible, superstitious, and childlike?

      Let those no-holds-barred flags fly! I hereby pledge a case of good -- make that great -- beer to the person who first arranges a "Choose Reason Over Superstition" flag atop that Boston pole.

    2. This case will cause zero problems, because no more flags will be flown outside Boston City Hall from now on except the flags of the United States, the Commonwealth of Massachusetts, and the City of Boston.

      1. If my prediction comes to pass I'm sure this will be the result. Only flags approved by the city council, subject to a mayoral proclamation with be flown in the future.

    3. If David Duke is allowed to host his event under the city's established rules, he will be allowed to fly his flag.

      I don't think this case will create additional problems because the real filter is in step one of that conditional - is Duke allowed to host the event in the first place? The city's rules are well-established and non-controversial. They weren't raised even tangentially in this litigation.

      Note that the case explicitly cites the fact that the city has repeated allowed a Pride Flag - a flag at least as controversial as any BLM flag could be - with no problems. They have also commonly flown the flags of other nations and likely will do so again despite the controversy that inevitably brings.

      1. It appears that the City invited all comers to use the Plaza for events. So it appears to me that they were only subject to scheduling constraints. There appear to be no other constraints and as a public forum, there may not even be any basis to refuse a request.

        I also don't think in this day a pride flag is all that controversial plus it appears it was flown by the City, not in conjunction with any specific event, other that Pride Week

    4. I'd imagine an Israeli, Palestinian, Russian, BLM or Islamic flag might attract a some controversy.

      Let us suppose that someone like David Duke, looking to promote his grift as he has for decades decided to have and event in the plaza and wished to raise a Confederated or even a Nazi flag.

      This sort of situation has come up before. States came up with those "adopt a highway" programs in which some civic group would keep a particular stretch of road free of litter, in exchange for a sign identifying them as the adoptive owner of that stretch of road… and then the Klan decided to take advantage of those programs. And, yes, courts ruled that they couldn't be excluded.

  6. I have defended Josh from his most vociferous critics in these comments. But there’s no defending this, IMO. You come across as petty and boring, bordering on hackery, picking such nits. Who peed in your Cheerios this morning, Professor?

  7. There's nothing worse than a young fogy. Take the stick out of your a*s and lighten up, kid.

  8. While I have no doubt seen flags flapping in the wind beside City Hall, I couldn't tell you which flag was flying from the non-government speech flagpole.

  9. Imagine being Josh Blackman and complaining that someone else's writing strayed from the key legal issues at hand. Lol.

    Look, I'm no Breyer fan, but the dude is just trying to vibe for a minute before he leaves. Let the man cook.

  10. Thomas spends pages going into the details of the crimes of an appellant where those crimes are irrelevant to the point at hand. We can indulge Breyer two or three paragraphs.

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