Liberal Justices Come Out Swinging In Uphill Battle Over Criminalizing Homelessness

Justices Sotomayor, Kagan and Jackson. TPM Illustration/Getty Images
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The liberal justices pounced aggressively in oral arguments Monday over a city ban on sleeping outside with a blanket, less indicative of a full-court press to sway their right-wing colleagues to their side and more an attempt to put their stamp on a case they know cannot be won. 

Grants Pass, Oregon prohibits people from sleeping outside with any bedding, even a blanket — a ban that, as Justice Sonia Sotomayor pointed out, is applied not to tired stargazers or Saturday afternoon park loungers but to the city’s homeless population. The city imposes escalatory fines on those who repeatedly break the law, culminating in charges of criminal trespass and accompanying jail time. 

A class of “involuntarily homeless” people argue that the ordinance is, in effect, simply criminalizing the status of being homeless, with no place to sleep — a violation of the 8th Amendment’s protection against cruel and unusual punishment. 

No matter the legal complexities of the case, it was always highly unlikely that this Supreme Court, the most right-wing since at least the 1930s, would greenlight expanding the constitutional protections of homeless people. This case would require them to accept that the premise of another one, Robinson v. California — which forbade criminalizing people for merely being addicted to drugs — applies here too. A city can punish people for urinating in public or setting fires in parks to keep warm or sleeping on sidewalks; it cannot punish them for their “status” as a homeless person. 

“You could say breathing is conduct too, but presumably you would not think that it’s okay to criminalize breathing in public,” Justice Elena Kagan said to Theane Evangelis, the lawyer for Grants Pass. “And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.” 

In a tea leaf that the conservative majority is likely to overturn the 9th Circuit Court of Appeals, which ruled against the public sleeping ban, Chief Justice John Roberts led the charge for the bench’s right wing. He often sounded downright Alitan as he proposed hypotheticals to make the argument against the sleeping ban sound silly. 

“Is being a bank robber a status?” he mused, implying that the argument could be stretched from people addicted to drugs to people without homes to career criminals. 

“Many people mentioned this is a serious policy problem,” he said. “Municipalities have competing priorities — what if there are lead pipes in the water? Do you build the homeless shelter or do you take care of the lead pipes?”

“Why would you think that these nine people are the best people to judge and weigh those policy judgments?” he asked incredulously, expressing a humility rarely on display when habitually knocking down actions taken by Biden administration agencies and the experts who staff them.

Alito, refusing to be outshone, towards the end of arguments introduced the idea that a person without housing’s “life choices” leading to their homelessness may be material in assessing whether they have the protected status. 

Of the conservatives, Justice Brett Kavanaugh seemed least at ease with reinstating the ban, probing how the sleeping ban helps when there’s a fundamental mismatch between the scant shelter beds available in Grants Pass compared to its homeless population.

Justice Ketanji Brown Jackson, all but crafting a dissent in real time, used her lines of questioning to rebut conservative complaints. She pointed out that the ban has been blocked in the states covered by the Ninth Circuit for some time, so endless hand-wringing about how governments would manage the homeless population without it is divorced from reality. 

She also parried Roberts’ attempts to differentiate the “status” of being addicted to drugs — which is protected under Robinson — from the “status” of being homeless, which Roberts tried to portray as a distinctly ephemeral, mutable circumstance.

“Can a person go from being addicted to drugs to not addicted to drugs?” she asked, showing that both are changeable.

Despite its overall tenor, there may be a small glimmer of hope for civil rights supporters after Monday’s argument. While Grants Pass didn’t ask the Court to overturn Robinson as a first-order demand — instead asking for it to be interpreted with a microscopically myopic scope — it maintained that it was wrongly decided, and said it’d welcome its overturning if the Court interpreted that decision more expansively. 

Justice Amy Coney Barrett said flatly: “I don’t think we should overrule Robinson,” indicating that the Court may not take the most maximal step in decimating this type of “status”-based protection from punishment. 

Ultimately, it fell to the liberals to bring the case out of legal abstraction to the realities: That a city is, by its own admission in a public meeting, trying to make being homeless so untenable in Grants Pass that people self-banish to other jurisdictions. 

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

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