Whenever I read a new Justice Breyer majority opinion, I brace myself. Not because I will disagree. But because the decision will be impossible to teach. Breyer will identify a host of factors, that can be weighed in indeterminate ways, which yield a result that cannot be clearly explained. I will miss Justice Breyer's quirky questions from the bench, but I will not miss his confounding caselaw.
Breyer's majority opinion in Shurtleff v. City of Boston was true to form. It includes this paragraph:
In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression. Our review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.
