The conservative majority of the Supreme Court expressed strong doubt on Monday regarding lower court decisions that deemed an Oregon city’s ordinance, which prohibits sleeping in public, to be a violation of the Constitution’s ban on cruel and unusual punishment.
Municipalities grappling with significant homeless populations, especially those in California and the eight other states within the jurisdiction of the 9th Circuit Court of Appeals, are closely monitoring the resolution of the Grants Pass ban case. The court had halted the implementation of the ordinance in Oregon and has also prevented the removal of homeless encampments in various cities.
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Throughout the two-and-a-half hours of arguments, all six justices appointed by Republicans showed their concern about the federal courts overseeing complex decisions concerning the accommodation of homeless individuals. They raised questions about determining suitable locations for homeless people to stay, establishing the appropriate number of shelter beds, and addressing situations where individuals refuse shelter due to restrictions on pets, drug or alcohol use, or because of mental health issues.
“Municipalities often face the challenge of balancing competing priorities. For instance, they may have to decide between addressing lead pipes in the water or constructing a homeless shelter. They also need to consider factors like fire protection. Chief Justice John Roberts raised an important question, questioning whether the nine justices are truly the most qualified individuals to make such policy judgments.”
The liberals on the court raised concerns about the ordinance’s emphasis on sleeping, hinting that it effectively constituted a criminalization of homelessness.
Justice Ketanji Brown Jackson emphasized the universality of sleeping as a fundamental human function. She pointed out the disparity in how the law treats those who can afford to sleep privately versus those who have no choice but to sleep in public. According to her, the statute unfairly targets the latter group.
“Sleeping is just as essential as breathing,” commented Justice Elena Kagan to Theane Evangelis, an attorney for Grants Pass. “While you could argue that breathing is also a form of conduct, it would be highly unlikely for anyone to consider criminalizing public breathing.”
However, some conservative members of the court pointed out that this line of argument implies that cities and towns are obligated to provide for all of people’s bodily needs.
Justice Neil Gorsuch questioned whether individuals have an Eighth Amendment right to defecate and urinate when there are no public bathroom facilities available.
Deputy Solicitor General Edwin Kneedler, speaking on behalf of the Biden Administration, clarified that they are not suggesting that public urination and defecation laws should not be enforced. He acknowledged the significant public health reasons behind such regulations.
The arguments on Monday centered around the significance and interpretation of a 1962 Supreme Court case called “Robinson v. California.” In this case, the Court ruled that a state law criminalizing drug addiction alone was in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
Gorsuch appeared receptive to the idea of overturning that ruling, or perhaps reorienting it to prioritize the due process rights of individuals, rather than the right to be protected from cruel and unusual punishments.
Gorsuch pointed out to Kelsi Corkran, the lawyer representing the homeless plaintiffs, that the focus of the argument was not on challenging the punishments.
Corkran stated that the Eighth Amendment serves the purpose of prohibiting the imposition of any punishment that lacks justification or is based on impermissible grounds.
According to Corkan, punishing homeless individuals without access to shelter serves no penological purposes for the city.
The rulings by the 9th Circuit on homelessness issues have faced criticism from not only conservatives, but also from Democratic mayors and other public officials who govern liberal-leaning cities.
California Governor, Gavin Newsom, made a unique move by submitting a friend-of-the-court brief to the Supreme Court. In the brief, he advocated for a balanced approach that steers clear of federal courts assuming the role of managing localities’ efforts in addressing homelessness.
“We believe it is crucial to maintain the flexibility and practicality that a more lenient interpretation would offer,” stated Newsom in response to a question from POLITICO. He emphasized the importance of their amicus brief and expressed their intention to closely follow the oral arguments on Monday.”
In an attempt to find a balanced approach, Kneedler argued on Monday that certain ordinances aimed at the homeless might be in violation of the constitution. However, he also contended that the courts should not have issued a broad injunction, but rather should have examined claims on an individual basis.
The attorney representing the Biden administration faced challenges in responding to inquiries from the justices on Monday regarding different types of restrictions that would affect the homeless, such as prohibitions on fires or tents. The attorney was asked to justify the validity of these restrictions, considering that individuals experiencing homelessness may genuinely have nowhere else to go.
Kagan agreed with the conservatives on this issue, pointing out that the principle could potentially necessitate the modification or suspension of various rules in cities or towns that do not have sufficient shelter available.
“It appears that there are some challenges with drawing boundaries,” she remarked. “Imagine a freezing cold night when someone desperately needs to start a fire for warmth. Or picture a rainy day when someone tries to put up a tarp for shelter. The city designates specific areas for sleeping, but unfortunately, those places are plagued with high crime rates. The list goes on and on… These are not intended to trap anyone.”
According to Evangelis, the lower courts’ approach demonstrates the flaws in their decision-making process. She firmly dismissed the Biden administration’s attempt to find a middle ground by suggesting that the availability of shelter should be assessed on a case-by-case basis for each individual.
Evangelis expressed concern about the potential chaos and disastrous consequences that would arise from such a decision. According to him, the ongoing issue of line-drawing problems would only continue to escalate.
