Sotomayor Sums Up Supreme Court’s New Ruling For The Homeless: ‘Stay Awake Or Be Arrested’

In a 6-3 decision, the Supreme Court on Friday ruled that forbidding people without housing from sleeping with a blanket outside — even when they have nowhere else to go — does not run afoul of the 8th Amendment’s prohibition of “cruel and unusual punishment.”

Justice Neil Gorsuch, writing for the majority, had to pull some contortions to explain how this case differed from Robinson, a Supreme Court precedent holding that a state could not punish someone for his “status” of being addicted to drugs. Gorsuch then had to argue that sleeping outside is somehow separate from the “status” of being homeless. 

He did so in part with pure imagination, feigning that Grants Pass, Oregon’s ban on public camping applies just as much to those without shelter as it does to stargazers. 

“Grants Pass’s public-camping ordinances do not criminalize status. The public-camping laws prohibit actions undertaken by any person, regardless of status,” he wrote. “It makes no difference whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.”

“That describes a fantasy,” Justice Sonia Sotomayor, writing for the three liberals in dissent, shot back. “In reality, the deputy chief of police operations acknowledged that he was not aware of ‘any non-homeless person ever getting a ticket for illegal camping in Grants Pass.’”

Gorsuch also larded up his decision with faux humility, intoning that a “handful of federal judges” is ill-equipped to match the “collective wisdom” of the American people in addressing the homelessness crisis (this posture will come as a great surprise to any who read the Court’s overturn of Chevron on the same day, in which Gorsuch gleefully concurred).  

Justice Clarence Thomas, in classic form, concurred to add that the Court should have gone further and overturned Robinson while the justices were at it. Gorsuch seemed amenable to the idea; Sotomayor dinged him for his “unnecessary swipes” at the landmark case throughout his opinion. Justice Amy Coney Barrett was likely one of the votes preventing such an outcome. During oral arguments, she said flatly: “I don’t think we should overrule Robinson.”

Sotomayor used her lengthy dissent to argue that for people experiencing homelessness, sleeping outside is like breathing outside — inherent to that status. 

“The majority countenances the criminalization of status as long as the City tacks on an essential bodily function — blinking, sleeping, eating, or breathing,” she wrote. “That is just another way to ban the person. By this logic, the majority would conclude that the ordinance deemed unconstitutional in Robinson criminalizing ‘being an addict’ would be constitutional if it criminalized ‘being an addict and breathing.’”

She ended her dissent with a list of laws and constitutional provisions — including the 14th Amendment’s Due Process clause — that the public camping ordinances may violate. In other words, she employed a technique Thomas often does for the right-wing litigants reading his opinions: Find another way forward here, and fight another day. 

Read the ruling here: