Somewhat predictably, the conservative-majority Supreme Court signaled during oral arguments Monday that it will rule in favor of the Oregon town whose law penalizing public camping was struck down by the Ninth Circuit.
In what was described by the New York Times as "a lengthy and, at times, fiery argument that lasted over two and a half hours," the nine justices of the Supreme Court sounded split along ideological lines in the case of Grants Pass v. Johnson. The case, which has been making its way through lower courts for the last couple of years, has been the latest battleground in the fight between homeless advocates and local and state governments, in an era when the homeless population has exploded, particularly along the West Coast.
Temperate weather and plenty of open space have made the towns and cities of the West Coast prime camping ground for many unhoused individuals — at least the more mobile and transient ones. And problems that arose in recent years in the small southwest Oregon town of Grants Pass, with tent encampments growing and no adequate shelter space to refer the homeless to, echo the problems being experienced by the coast's major cities, in particular San Francisco and Los Angeles.
A 2018 decision by the Ninth Circuit, which the Supreme Court previously declined to hear on appeal, ruled against the city of Boise, Idaho, citing the Eighth Amendment's prohibition against excessive fines and cruel and unusual punishment. That case, Martin v. Boise, was used as precedent for the appeals court who ruled against Grants Pass, but it appears now that both could be overturned by June, by the six conservative justices.
At the very least, the court seems likely to rule that cities should have some say in policies around homelessness, public health, and access to shelter.
There was some intense discussion at the high court Monday over the question of whether homelessness is a "status," and therefore can come with protections, the way that drug addiction was ruled to be a status in a case from 60 years ago. The lawyer for Grants Pass, Theane D. Evangelis, argued that it is not, but Justice Elena Kagan shot back, "Homelessness is a status. It’s the status of not having a home."
And Justice Sonia Sotomayor questioned how the court can allow every city to act with the same impunity to criminalize certain acts, like sleeping in a public park, if no city steps up to provide any alternatives.
"Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this? Where are they supposed to sleep? Are they supposed to kill themselves not sleeping?" Sotomayor asked Evangelis.
And Kagan and Justice Katanji Brown Jackson compared sleeping to the biological needs for eating and breathing. "Sleeping is a biological necessity," Kagan said, per the Times. "It’s sort of like breathing. I mean, you could say breathing is conduct, too. But, presumably, you would not think that it’s OK to criminalize breathing in public, and for a homeless person who has no place to go, sleeping in public is kind of like breathing in public."
Jackson added that criminalizing eating in public wouldn't be constitutional, because homeless people "have to eat in public, because they’re unhoused and they can’t afford to go to a restaurant."
Chief Justice John Roberts, per the Times, hedged on the status question, saying, "What is the analytic approach to deciding whether something’s a status or a situation of conduct? You can remove the homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you’re kicked out of the shelter."
And the other conservatives on the court reportedly seemed to agree with Roberts question to the lawyers in the case, asking, "Why would you think that these nine people are the best people to judge and weigh those policy judgments?"
As Vox notes, there could be some surprises coming from Justices Brett Kavanaugh and Amy Coney Barrett, with Barrett questioning how a city could criminalizing sleeping with a blanket in a public park. "There is an off chance that Justices Brett Kavanaugh and Amy Coney Barrett might join with the Court’s three Democratic appointees to permit a very narrow injunction blocking the web of anti-homelessness ordinances at issue in this case," Vox writes.
Justice Neil Gorsuch laid out some of the conservatives' views on the case, as Vox reports. Gorsuch suggested that the Justice Department lawyer arguing for the defendents, Edwin Kneedler, was trying to extend the status granted in the 1962 case Robinson v. California, which gave protected status to drug addicts but did not disallow cities from enacting laws against conduct like drug use or drug possession. Similarly, Gorsuch argued, you can say that a homeless person can't be fined for the status of being homeless, but you can enforce bans on certain conduct, like camping, even if that conduct might be inevitable.
The Grants Pass case has created some odd bedfellows in the public debate over homeless policy. As the Times noted earlier today before oral arguments began, the case has drawn amicus briefs siding with Grants Pass from liberal Governor Gavin Newsom, as well as the very conservative Goldwater Institute in Arizona.
"This is to me just about common sense, not about ideology," Newsom said at a news conference last week, per the Times. He also, colorfully, told a story of helping to dismantle the large Wood Street encampment in Oakland, saying that the experience, "felt like a scene out of a Raiders of the Lost Ark where, you know, thousands and thousands of rats appeared running all around us."
Should the Supreme Court decision come down in June, ruling in favor of the plaintiff, it is likely to mean that San Francisco will move forward with more aggressive tent-clearing operations — though those have been ongoing since an indication last year from the Ninth Circuit that "involuntarily homeless" does not apply when an offer of shelter is refused.
Previously: Supreme Court Agrees to Hear Case on Homeless Encampment Sweeps
Photo: Ian Hutchinson