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The Supreme Court Wants Nothing to Do With Homelessness

In oral arguments, the justices seemed highly reluctant to entangle themselves in a matter that many believe subject the neediest Americans to cruel and unusual punishment.

Photograph by Jordan Gale for The New Republic
Officer Tim Artoff hands out illegal camping citations at Baker Park in Grants Pass, Oregon on April 18.

The Supreme Court appeared to be split on Monday on whether an Oregon city’s ordinances that make it illegal to sleep outdoors in public spaces violate the Eighth Amendment’s ban on cruel and unusual punishment. While most of the justices seemed reluctant to “constitutionalize” local homelessness policies, there was plenty of hesitance about leaving homeless people with no legal recourse.

In City of Grants Pass v. Johnson, federal courts blocked officials in Grants Pass, Oregon, from enforcing city ordinances that make it a civil violation to sleep outdoors with a blanket. Theane Evangelis, who argued on behalf of the city, faced pointed questions from the court’s liberal members about this policy.

“Presumably, you would not think that it’s okay to criminalize breathing in public,” Justice Elena Kagan noted during one exchange. “And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

It is no surprise that the justices struggled with the issue: Addressing homelessness is a perennially vexing problem for state and local officials across the country. Most of the court’s conservative members, for their part, appeared unwilling to draw the federal courts into it. That approach could have dire implications for some of the most vulnerable Americans if the justices green-light laws that effectively criminalize homelessness.

But it was unclear exactly how the justices would resolve the case, and a few of the conservative justices appeared uneasy with the prospect of saying the courts should avoid it altogether. Justice Amy Coney Barrett, who asked hard questions for both sides, noted at one point that “our nation has a history and tradition of not saying you can shunt homeless people or the poor out of your jurisdiction and on to others.”

The case reached the Supreme Court after years of homelessness litigation on the West Coast. The Ninth Circuit Court of Appeals ruled in Martin v. City of Boise in 2019 that states and cities could not enforce criminal anti-camping laws against homeless residents if they had nowhere else to go. The Supreme Court declined to review that decision in 2020, and it remains the law of the land in the Ninth Circuit, which is home to the bulk of the nation’s homeless population.

The Grants Pass ordinances instead focused on the materials that a person might use for sleeping, such as “bedding, sleeping bag, or other material used for bedding purposes.” The ordinances also made it a civil offense to violate them instead of a criminal one, with offenders racking up hundreds of dollars in fines instead. But failure to pay those fines could ultimately lead to jail time. Drawing upon the Martin precedent, the Ninth Circuit also ruled against the Oregon city’s ordinances.

“The City interprets and applies the ordinances to permit non-homeless people to rest on blankets in public parks while a homeless person who does the same thing breaks the law,” Kelsi Corkran, the lawyer representing the homeless persons challenging the law, told the court. “The ordinances by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time. “

At the heart of the case is a question of what counts as “cruel and unusual punishment.” In the 1962 case Robinson v. California, the Supreme Court struck down a state law that made it a criminal offense to be addicted to narcotics. The justices, citing the Eighth Amendment, held that it was unconstitutional to punish someone simply for the status of being addicted to narcotics. In Martin, the plaintiffs successfully argued that the same reasoning applied to their status.

“Any conduct at issue here is involuntary and inseparable from status—they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping,” Judge Marsha Berzon wrote for the Ninth Circuit in Martin. “As a result, just as the state may not criminalize the state of being ‘homeless in public places,’ the state may not criminalize conduct that is an unavoidable consequence of being homeless—namely sitting, lying, or sleeping on the streets.”

Some of the court’s members appeared uninterested in applying Robinson to other situations. Chief Justice John Roberts was foremost among them. In a series of questions for Evangelis, he suggested that a homeless person no longer becomes homeless if that person “buys a home or finds a home or is given a home” or even if they stay overnight at a homeless shelter.

“Is that consistent with the definition of ‘status’ in Robinson?” he asked, suggesting that he thought the answer was no.

Justice Clarence Thomas put that viewpoint even more succinctly. “Robinson actually included a crime of, as I read it, either to use narcotics or to be addicted to the use of narcotics, and the Court was concerned about the status of being addicted to the use,” he asked at one point. “Is there a crime here for being homeless?”

Other justices took issue with that narrow approach. “Could you criminalize the status of homelessness?” Kagan asked. “Well, I don’t think that homelessness is a status like drug addiction, and Robinson only stands for that,” Evangelis replied, citing a 1962 precedent at the heart of the case. “Well, homelessness is a status. It’s the status of not having a home,” Kagan noted.

Justice Neil Gorsuch suggested that even without the Eighth Amendment to rely upon, a homeless person might be able to invoke other common-law defenses to avoid punishment if they had nowhere else to go. “Do you concede that there are instances in which a necessity defense, long recognized at common law, would apply to eating in public, sleeping in public, or other things like that?” he asked. Evangelis agreed and claimed that Oregon law already incorporated that defense.

That option also seemed appealing to Justice Brett Kavanaugh, the court’s median vote. “Given the line-drawing problems that we’ve been going through, if a state has a traditional necessity defense, won’t that take care of most of the concerns, if not all, and, therefore, avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community?” he asked at one point.

Kagan, however, noted that it would still require a certain amount of police interaction with otherwise law-abiding homeless persons. “You’re not willing to say ‘no, we’re going to tell all our police officers that they shouldn’t give a citation in that circumstance?’” she pointedly asked Evangelis. “You know, ‘we’re going to give a citation, and then we’ll see how the courts deal with it,’ is all you’re going to tell me?”

The court’s liberal justices also took issue with the broader implications of overturning the lower court’s ruling. “Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this?” Justice Sonia Sotomayor asked, referring to homeless people. “Where are they supposed to sleep? Are they supposed to kill themselves [by] not sleeping?”

Justice Ketanji Brown Jackson also appeared reluctant to relieve the city from facing Eighth Amendment claims. “I mean, suppose the City decided that it was going to execute homeless people,” she asked. “Very extreme, I know, but it would solve the problems that you’re talking about. Do we have an Eighth Amendment issue in that circumstance?”

“Yes. I think there, you look at the punishment,” Evangelis replied. “That—again, here, we’re looking at the punishment, which is [a] low-level fine—”

“That would be both cruel and unusual, wouldn’t it?” Gorsuch interrupted. “Yes, it would be,” Evangelis eventually said after briefly dissembling on the matter. “Why not just yes to that?” he asked.

The most likely outcome for the case is that the court adopts the Gorsuch-Kavanaugh-Barrett approach, which would allow homeless people to raise a necessity defense after they receive a citation or are arrested. But the court appeared to be unsettled on whether they should remove the Eighth Amendment from the equation entirely, and that majority may ultimately change while the rulings are drafted. The justices have until the end of June to figure it out.