Late last month, the U.S. Supreme Court decided a case that, if you read Mother Jones or Jacobin even fairly regularly—and God help you—spells disaster for anti-homelessness efforts across the country, needed now more than ever. The ruling—City of Grants Pass, Oregon v. Johnson—does no such thing. Justice Neil Gorsuch’s 6-3 opinion simply holds that state or municipal laws prohibiting all encamping on public property (by the homeless or the housed) are not per se violations of the Eighth Amendment’s Cruel and Unusual Punishments Clause. Most major cities and towns in the United States place at least some restrictions on encamping on public property. These are for the most part quite commonsensical—banning things like aggressive panhandling, using ultraflammable cooking implements, and sleeping at points that hinder public ingress or communal enjoyment of public property.
California Governor Gavin Newsom, hardly a reactionary, praised the ruling: “This decision removes the legal ambiguities that have tied the hands of local officials for years and limited their ability to deliver on common-sense measures to protect the safety and well-being of our communities.” Few such measures are as draconian as alarmist critics of Grants Pass allege. From their telling, the ruling “greenlight[s] the criminalization of homelessness” because it clears law enforcement to disperse from public spaces even those who have no place else to go. Lower court rulings prior to Grants Pass provided state and local officials with precious few clear rules on what sort of encampments they could and could not remove for the sake of public safety, be it a lone individual with nothing more than a sleeping bag or a congregation of ad hoc shelters chockfull of hot plates, loose wires, and other serious hazards.
In her dissent, Justice Sonia Sotomayor correctly notes that “[p]unishing people for their status is ‘cruel and unusual’ under the Eighth Amendment,” but makes the categorical error (we fear knowingly) of extending status (e.g., being an alcoholic) to the actions that this or that status tend to produce (e.g., downing a handle of vodka in front of a courthouse on a weekday morning). Gorsuch makes short work of this wirecross, noting that in Powell v. Texas (1968)—one of the prior Supreme Court rulings upon which both the majority and dissent rely (only the majority correctly)—author Justice Thurgood Marshall “refused to extend” Eighth Amendment protection to “actions undertaken, ‘in some sense, involuntar[ily].”
The majority adds that beyond the discrete Eighth Amendment question before them, the Constitution includes several robust protections for homeless persons (or anyone) facing criminal prosecution—or simply removal—for camping on public property. Protections that Grants Pass leaves wholly undisturbed. Quoting rulings new and old, Gorsuch offers that the Fifth and Fourteenth Amendment’s Due Process Clauses “ensure that official may not displace certain rules associated with criminal liability that are ‘so old and venerable,’ ‘so rooted in the traditions and conscience of our people[,] as to be ranked as fundamental.’”
Beyond these are others, like the Fifth and Sixth Amendments, which command “prosecutors and courts [] observe various procedures before denying any person of his liberty, promising for example that every person enjoys the right to confront his accusers and have serious criminal charges resolved by a jury of his peers.” That is, the myriad of substantive and procedural obstacles law enforcement and judges must clear before condemning a man to prison or other criminal penalty (including the merely pecuniary). And of course, such traditions include the notion that a man cannot be jailed because he is a drunk, but is subject to prosecution (with all of its constitutional bells and whistles) for getting drunk where doing so is rightly prohibited. The same logic applies to rules against encampment, provided, however, that law enforcement targets necessitous and recreational campers alike (otherwise the rule would run afoul of the Fourteenth’s Equal Protection Clause).
The dissent objects with a series of analogical arguments that in totum amount to the sinister old adage that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The obvious subtext being that only the latter group would have any need or desire to partake of such transgressions. But in grounding her dissent thusly, Sotomayor misses or ignores the sparing role courts are meant to perform in the policymaking enterprise. We do not discount the tragedy of homelessness—nobody should—nor the crucial role government must play in its alleviation (though the magnitude of that role, versus, say those of private charities and other corners of civil society, will always be contentious).
But it is not a jurist’s job to save the people from themselves—or at least their own poor decisionmaking. The judge is there to interpret the law—no more, no less. If the dissent’s methodology were applied to all areas of the law, then nothing lawmakers wrote, however just or unjust (but still constitutional) in practice would have any bearing on what law enforcement and other government officials could or could not do. It would free the courts to decide, in the anti-homelessness context, that such status protects a whole host of harmful actions that are in, say, Sotomayor’s personal view “in some sense involuntary.”
But without peremptory objective standards by which all persons’ behaviors are measured—i.e., the law—judges could well decide that any antisocial action they do not wish to see prosecuted are just the unfortunate byproducts of a person’s “status” as a psychopath, a pyromaniac, or a vagabond. The law does not, for good reason, let certain otherwise criminal behaviors slide because it is harder for some than others to abstain. Such a mandate in the hands of judges could easily devolve into lawlessness.
There is—and should be—grace given to those who are undertaking life’s necessary functions (e.g., sleep, nutrition, elimination). Such grace is to be found in the several constitutional protections herein discussed, alongside nonconstitutional rights “so rooted in the traditions and conscience of our people[,] as to be ranked as fundamental.” Beyond these, it is for the people—not judges—to decide, even incorrectly, what policy solutions to employ in an effort to combat scourges like homelessness. All Grants Pass has done is confirm that within this constellation the Eighth Amendment protects us all from “cruel and unusual punishment” without immunizing those who have very good reason to break the law from the harmful consequences of their actions—be it hampering commerce (e.g., blocking entrances to stores) or causing fires that can spread to others’ homes and businesses (e.g., using a hot plate in a heavily sheeted tent).
Alki,
Sam Spiegelman