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


Right this moment, the Supreme Courtroom determined Shurtleff v. Metropolis of Boston. Right here, Boston allowed many non-public teams to lift flags at Metropolis Corridor, however rejected a flag that included a cross. The town argued that the flag-raising program was authorities speech. The First Circuit agreed. The Supreme Courtroom unanimously reversed.

Chief Justice Roberts assigned the bulk opinion to Justice Breyer. This project is sensible. Breyer wrote the bulk opinion in Walker v. Texas Division, Sons of Accomplice Veterans. And Breyer may be very a lot a son of Boston. He little question walked down Cambridge Avenue many instances, and noticed the flags flapping within the wind. That have little question knowledgeable the primary paragraph of Half I-A of the bulk opinion:

The flagpole at difficulty stands on the entrance of Boston Metropolis Corridor. See Appendix, infra. Constructed within the late 1960s, Boston Metropolis Corridor is a uncooked concrete construction, an instance of the brutalist type. Critics of the day heralded it as a public constructing that “articulates its features” with “power, dignity, grace, and even glamor.” J. Conti, A New Metropolis Corridor: Boston’s Enhance for City Renewal, Wall Avenue Journal, Feb. 12, 1969, p. 14. (The design has since proved considerably extra controversial. See, e.g., E. Mason, Boston Metropolis Corridor Named World’s Ugliest Constructing, Boston Herald (Nov. 15, 2008), https://www.bostonherald.com/2008/11/15/boston-city-hall-named-worlds-ugliest-building.)

Breyer little question has the experience to touch upon the architectural type of Boston Metropolis Corridor. In spite of everything, he’s a juror for the Pritzker Structure Prize. However this passage has completely nothing to do with the authorized difficulty at hand. Nothing. (Effectively, “brutalist type” could describe how Justice Gorsuch savaged the Lemon test–more on that concurrence later.) This frolic and detour has no place within the U.S. Stories.

These sentences remind me of Justice Blackmun’s opinion in Flood v. Kuhn. This case upheld the antitrust exemption for Main League Baseball. (Former-Justice Goldberg argued on behalf of baseball participant Curtis Flood.)  Justice Blackmun’s opinion is maybe most remembered for Half I, which paid tribute to well-known baseball gamers. He even quoted Casey on the Bat. This prolonged dialogue was fully gratuitous and irrelevant to the authorized points at hand. In response, Justices White and Chief Justice Burger dissented from Half I of the bulk opinion:

MR. JUSTICE WHITE joins within the judgment of the Courtroom, and in all however Half I of the Courtroom’s opinion.

MR. CHIEF JUSTICE BURGER, concurring. I concur in all however Half I of the Courtroom’s opinion . . .

I’d have dissented from Justice Breyer’s dialogue of structure.

Justice Breyer had yet another reference from Fenway, that Justice Sotomayor could have thought-about dissenting from:

Boston couldn’t simply congratulate the Pink Sox on a victory have been the town powerless to say no to concurrently transmit the views of dissatisfied Yankees followers.

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