I suspect the lawyers for the City of Boise, Idaho, sensed trouble back in 2018 when they read the first paragraph of Judge Marsha Berzon’s opinion in a lawsuit against the city by six homeless plaintiffs. It begins with a quote from Anatole France, the French novelist: “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” Justice Neil Gorsuch, in an opinion issued Friday on behalf of the conservative supermajority of justices, took a little more time to get to the point: the Supreme Court, in its majesty, is walking away from those, rich or poor, who sleep under bridges.
That 2018 Ninth Circuit panel opinion, Martin v. City of Boise, struck down a city “camping” ordinance making it a crime to use “any of the streets, sidewalks, parks, or public places as a camping place at any time.” It defined camping as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence”—in other words, to be a homeless person sleeping outdoors.
When the Ninth Circuit panel found the ordinance unconstitutional, interestingly, the opinion pointed to the Eighth Amendment’s prohibition on “cruel and unusual punishments.” To be more precise, the panel held that “an ordinance violates the Eighth Amendment insofar as it imposes criminal sanctions against homeless individuals for sleeping outdoors on public property when no alternative shelter is available to them.”
That decision led directly to a case against the City of Grants Pass, Oregon, with a population of 40,000, of whom around 600 are homeless on any given night, for passing and enforcing a similarly strict, though subtly different, “camping ordinance.” On Friday, the Court, in a party-line 6-3 decision, gave the green light to the city, setting aside Martin and taking the Eighth Amendment out of the picture entirely.
To be fair, the Martin precedent wasn’t only criticized by the likes of Gorsuch. It had set off howls of protest from many local officials in the Western states covered by the Ninth Circuit. It also sparked a series of district court injunctions many cities felt went too far in tying their hands. When the Grants Pass case came along, some of these cities saw a chance to get the Supreme Court, now boasting three Donald Trump-chosen justices, to step in and relieve them of both precedents.
Some background: The 2018 Martin decision flowed from a remarkable 1962 Supreme Court case, Robinson v. California, concerning a California man slapped with a 90-day jail sentence because a police officer noticed needle tracks on his arms. He didn’t have drugs on him; the officer didn’t see him use them; but California law at that time provided that “No person shall . . .be addicted to the use of narcotics.”
The flaw in the California “addiction” statute, a Supreme Court plurality wrote, was that it criminalized a mere “status,” like having a chronic disease. Criminal law could certainly forbid possessing, using, or distributing drugs—but just having the addict’s underlying Jones was more like a disease than a crime. “[I]imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” Justice Potter Stewart, a Dwight Eisenhower pick for the Court, wrote. “But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”
Now, at last, the Martin precedent camps with the fishes, with Gorsuch’s opinion in City of Grants Pass v. Johnson, which held that a similar, even more stringent “anti-camping” ordinance enacted by Grants Pass did not violate the Eighth Amendment. Though the Court didn’t overturn Robinson (basically they were too busy overturning 40-year-old Chevron regulatory doctrine the same day), it made clear that from now on, it didn’t want to hear a lot of backchat about “substantive” cruelty and unusualness.
The 2018 Martin ruling from the Ninth Circuit was unusual, to be sure. Most Eighth Amendment Punishment Clause cases revolve around the methods of punishment—drugs used for lethal injection, solitary confinement, or holding mentally ill prisoners without providing them psychological services—rather than about what the punishment is for, which is called a substantive flaw. The Boise ordinance used criminal citations; even if they led to prison, there’s nothing “unusual” about that, and courts don’t consider them “cruel.” The Grants Pass ordinance is one more step removed with steep civil fines ($295 for a first offense, rising to $537.60 for a second one). Two citations can also bring an exclusion order, telling the recipient they may not enter a city park again. Repeated entry into the park carries jail time for criminal trespass.
In reality, a person unable to afford lodging is unlikely to have a spare $295 sitting around. When they don’t pay, the fine goes up over and over. In her dissent, Justice Sonia Sotomayor pointed out that one of the original plaintiffs, who died during the pendency of the case, left this world without having found a home—but carrying to the afterlife a city demand for more than $5,000 in unpaid fines and penalties.
In the legal mind, jail sentences and compounding fines are just fine, not cruel and unusual, because they’re just the way we usually treat people. Think traffic or zoning citations or short jail stays for assault. Gorsuch, who has rarely met a factual record he couldn’t improve on, insisted that the anti-camping law forbids actions like “occupy[ing] a campsite” on public property “to maintain a temporary place to live.” Thus—hey presto!—the law provides that the rich as well as the poor can’t temporarily live on the streets:
Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.
This is an excellent point: its sole defect is being, from the record in front of the Court, utterly false. As Sotomayor points out, Grants Pass law enforces the law solely against the homeless (and considers that even covering oneself with a blanket is a violation); a police official testified that as far as he knew, only homeless people had ever been charged with “camping” because they are the only ones who need a “temporary place to live.”
Officers testified that “laying on a blanket enjoying the park’” would not violate the ordinances; and that bringing a sleeping bag to “look at stars” would not be punished. Instead, someone violates the Ordinance only if he or she does not “have another home to go to.” That is the definition of being homeless.
As I said, Grants Pass may never attain its dream of forcing the homeless out of town; that’s because, in 2021, Oregon’s Democratic-led legislature passed a statute providing that any municipal regulation of homelessness “must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness.”
That’s the rub: Grants Pass came to the Court asking it to wipe out any Eighth Amendment obstacle to its quest for a homeless-free town. The case attracted amicus briefs from several communities with homeless populations of well over 600. Gorsuch breezily asserts that these briefs support the majority’s result. While a number of amicus briefs do ask the Court to sweep away the Eighth Amendment aspect, Sotomayor points out that one of the cities on the front lines of America’s homeless problem, San Francisco, along with the state of California, did not ask the Court to wipe away the Eighth Amendment in this area; instead, they asked for some narrowing of the Martin and Grants Pass decisions to give them more leeway. California’s brief asks the court to
decide the case in a way that respects the basic constitutional rights of people who are unhoused—including their right not to be criminally punished for sleeping outdoors when they have nowhere else to go—while also preserving the sovereign authority of the States and their local governments to adopt a range of valid policies in response to this crisis.
California has about 50 percent of the nation’s homeless. They may not want their cities to be pressured now to adopt sweeping Grants Pass-style “camping” laws. It remains to be seen what municipality can make such a law work; for Los Angeles or Sacramento, enforcement would be a nightmare.
Gorsuch’s opinion is written in his usual ponderous I-am-just-down-from-Sinai prose. But he throws a maybe-maybe-not lifeline to homeless litigants, suggesting they try again to challenge these laws—but under the Fourteenth Amendment’s guarantee of “due process of law.” This is sure to attract the interest of advocacy groups, but the Court’s general hostility to that kind of due-process claim suggests it may be a someday-Santa-will-bring-you-a-pony promise.
Before concluding, I want to say that I don’t need any lectures from Supreme Court Justices on the problem of homelessness. My small town, Eugene, Oregon, has a homeless problem that dwarfs that of Grants Pass. In fact, by many measures, it has the highest per-capita rate of homeless people in the nation. Homeless tents dot my quiet neighborhood. On one memorable occasion, we arrived home from a trip and found that someone had set up a cozy sleeping nest on our front porch (That person never returned.) The homeless are our neighbors; they come and go. Some we like, some we don’t, most never bother us at all. I don’t want them rounded up and pushed out into the countryside. Our police and social service structure cope daily with this population and its problems. I do not get the sense that our police want to be the tip of the spear in a new offensive. There are those in my town who do, of course, and one effect of Friday’s decision may be to encourage them to demand harsher policies; if so, it will be just one more example of how the Supreme Court has contributed to polarization in American society.
I can’t leave this subject without noting, as many on the internet have pointed out, that Justice Gorsuch, a master of the straight face, includes this passage in his opinion:
If there are answers to [questions about the homeless], they cannot be found in the Cruel and Unusual Punishments Clause. Nor do federal judges enjoy any special competence to provide them.
Gorsuch’s aw-shucks disclaimer appears on the same day that the Court, in Loper-Bright Enterprises v. Raimondo, overturned the Chevron doctrine and proclaimed federal judges, in their majestic wisdom, are now the chief arbiters of federal policy in environmental law, health and safety regulation, education, and most other areas that touch ordinary people’s lives.
We’ll take the important things from now on, is part of Friday’s message. The rest is Homeless—you’re on your own.
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