Supreme Court Conservatives Likely To Roll Back Homeless Rights

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The Supreme Court appeared likely to scale back homeless rights decisions handed down by the Ninth Circuit Court of Appeals over the past six years, but how they would do so was unclear as the court’s conservative supermajority splintered on how far they wanted to go.

The case argued before the court on Monday originally came out of Grants Pass, Oregon, where in 2013 city officials enacted anti-camping ordinances that prohibited sleeping outdoors with as little as a blanket. The ordinances also imposed escalatory civil fines on violators, and could ultimately lead to jail time. The city’s policy was challenged by three homeless Grants Pass residents, who claimed it was only enforced on the homeless population and violated the Eighth Amendment. The ordinance was blocked by the Ninth Circuit Court of Appeals in 2022.

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That appeals court decision relied on the circuit’s 2018 precedent in Martin v. Boise, a similar case which found that punishing homeless people for sleeping outside when there was no alternative shelter available for them amounted to cruel and unusual punishment under the Constitution’s Eighth Amendment, given that it effectively prohibited people from the basic physical need to sleep. The finding in Martin was in turn based on the 1962 Supreme Court decision in Robinson v. California that prohibited the state from making it illegal to be a drug addict for amounting to cruel and unusual punishment of a status group ― drug addicts.

A number of cases within the Ninth Circuit have since relied on the precedent in Martin in various rulings to restrict the enforcement of laws punishing outdoor sleeping when the number of homeless people exceeds the number of available shelter beds in a particular community.

Homeless rights activists hold a rally outside of the U.S. Supreme Court on Monday as it heard arguments in City of Grants Pass v. Johnson.Kevin Dietsch via Getty Images

Martin has “proven unworkable,” Theane Evangelis, the lawyer for the city of Grants Pass, told the court, while urging the court to overturn not only the Ninth Circuit’s ruling against the city, but also the ruling in Martin.

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Lawyers for the Department of Justice made a separate argument that the court should uphold that it is cruel and unusual punishment to penalize homeless people for their status as homeless, but the court should add limits to the precedent of Martin by requiring municipalities to make individualized findings.

On the other side, lawyers for the homeless Grants Pass residents argued that the city was still allowed to police every manner of conduct of its homeless population, from where people could sleep to the possession of ovens and setting of fires, but that its citywide ban on sleeping with a blanket amounted to a status-based punishment violating the Eighth Amendment.

The justices appeared skeptical of all of these arguments, but a majority of them appeared to lean towards limiting Martin in some fashion. The question was, how much?

Among the conservatives, Chief Justice John Roberts and Justice Clarence Thomas sided most heavily with Grants Pass. Roberts repeatedly asked whether homelessness was indeed a status, since a person could stop being homeless if they obtained shelter.

“If someone is homeless for a week and then finds available shelter, is that person homeless?” Roberts asked.

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Roberts’ effort to deny homeless people status protections at times drifted into odd comparisons.

“Is being a bank robber a status?” Roberts asked at one point.

The three liberal justices ― Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson ― fell on the opposite side, expressing incredulity regarding Grants Pass’ position that it could impose a citywide ban on sleeping with a blanket.

While Evangelis claimed that the city’s anti-camping laws do not specifically target the homeless, the city would not fine or arrest a “star gazer” who falls asleep, Sotomayor noted.

“You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while,” Sotomayor added. “You only arrest people who don’t have a home.”

Advocates inform homeless residents of Grants Pass, Oregon, about a sweep removing their tents as they city cracks down on outdoor sleeping.Melina Mara/The Washington Post via Getty Images

Could the city say that “breathing is conduct” that it could ban? Kagan asked. “For a homeless person who has no place else to go, sleeping in public is kind of like breathing in public.”

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Jackson, meanwhile, asked if it would be cruel and unusual punishment if the city “prohibited eating on public property,” and only enforced it on people without a private space to eat.

With these two groups of justices on clear sides, the court’s decision will be made by the four conservatives ― Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett ― who found the arguments of all sides wanting.

The specific problem that these justices had was the difficulty in drawing lines between conduct ― public urination or defecation, or possession of ovens or tents, and status ― being homeless.

Barrett noted that the case is about sleeping outdoors with a blanket, but other Ninth Circuit cases have extended Martin to limit municipal laws against fires and place-based sleeping restrictions.

“Because the line is things that are involuntary, that are human needs, it’s difficult to draw the line,” Barrett said. “Whatever we decide here about the case is the line.”

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In questioning Kelsi Corkran, lawyer for the homeless Grants Pass residents, Barrett raised the potential problem of whether conduct that reflected other basic human necessities like urinating or defecating in public, or eating or even obtaining food through theft, if necessary, could lead to a status protection under the Eighth Amendment.

Supreme Court Justice Amy Coney Barrett was one of four conservative justices who seemed conflicted on how to rule in the Grants Pass case.Nathan Posner/Anadolu via Getty Images

Corkran noted that none of these are part of the definition of homelessness.

“Homelessness is lacking a fixed regular nighttime address. So, the sleeping prohibition goes more directly to the status of homelessness more than urination or defecation,” Corkran said.

How the court determines how it can separate conduct related to being homeless from the status of homelessness will likely determine the outcome of the case. And that could have monumental ramifications for homeless people across the country.

A number of West Coast states and cities covered by the Ninth Circuit’s rulings, from the Democratic-led California to Republican-run Idaho, also weighed in with briefs in the case to argue against the circuit’s decision in Martin. They all argued that the circuit’s decision in Martin was overly broad and was being applied in subsequent decisions in a manner that greatly limited their ability to address the growing homeless population in their jurisdictions. Some of these states and cities supported Grants Pass’ push to fully overturn Martin, while others hewed closer to the Justice Department’s desire to simply limit it.

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“It would be a disaster if Martin remained on the books,” Evangelis argued in her closing remarks.

But removing Martin’s protections would also be disastrous for homeless people, who could be subject to increasing schemes like the one implemented by Grants Pass, pushing them out of every state and city that did not want them there.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to [Grants Pass]? Where are they supposed to sleep?” Sotomayor asked. “Are they supposed to kill themselves by not sleeping?”

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