Supreme Court Gives Cities Greater Leeway to Address Homelessness

By Kelvin S. Jensen

On June 28, 2024, in City of Grants Pass v. Johnson, the U.S. Supreme Court held that anti-camping ordinances do not violate the Eighth Amendment to the Constitution, reversing Ninth Circuit case law reaching the opposite conclusion. In this 6-3 decision, the Supreme Court continued its recent tendency of anchoring Eighth Amendment jurisprudence to originalist modes of interpretation (text, history, and structure). The Court also cast doubt on the 1962 case of Robinson v. California, which held that the Eighth Amendment prohibits laws criminalizing a person’s status. Finally, the Court suggested that a municipality’s decisions about homelessness policy will not be subject to rigorous judicial scrutiny.

In the 2019 Ninth Circuit case of Martin v. Boise, the court held that the Cruel and Unusual Punishments Clause of the Eighth Amendment prohibited cities from enforcing anti-camping laws against homeless people who do not have access to alternative shelters. In Martin’s wake, district courts have invalidated public camping laws throughout the circuit, including in the city of Grants Pass, Oregon, which decided to appeal the district court’s order. The Ninth Circuit affirmed both the district court and its own holding in Martin, so Grants Pass appealed to the Supreme Court.

Writing for the majority, Justice Gorsuch reversed the Ninth Circuit, holding that the Eighth Amendment applies not to conduct the law criminalizes but to the punishment the law provides. The punishment provided by the Grants Pass ordinance—civil fines and the possibility of jail time for repeat offenders—is not cruel or unusual because it does not “superadd terror, pain, or disgrace.” It was punishment of this latter sort that worried the drafters of the Cruel and Unusual Punishments Clause. The Court’s focus on the original meaning of the clause, and its concomitant refusal to consider “evolving standards of decency,” indicate that the Court is serious about tethering its Eighth Amendment jurisprudence to originalist moorings. See Bucklew v. Precythe, 587 U.S. 119, 129–132 (2019) (concluding the Eighth Amendment does not guarantee prisoners painless death based on original meaning of the Eighth Amendment).

The Court also addressed arguments relating to Robinson v. California, 370 U.S. 660 (1962), which held that the Eighth Amendment does not allow the government to criminalize a person’s status. Although the Court embraced the reasoning of Justice White’s dissent and noted that Robinson has not been relied on in subsequent decisions, the Court did not overrule Robinson because the Grants Pass ordinance did not punish status. It punished conduct, namely, the conduct of camping out. As the Court explained,

[u]nder the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

Responding to the objection that sleeping is involuntary conduct, the Court explained that society simply has an interest in criminalizing conduct that can be considered involuntary, such as drug use by addicts. The Court’s refusal to extend Robinson to involuntary conduct, coupled with its rejection of Robinson’s reasoning and its perception that subsequent court decisions have not relied on Robinson, are good omens for litigants seeking to challenge Robinson in future.

Finally, the Court in dicta addressed the general problem of homelessness. Noting that homelessness is an acute and complex public health and safety crisis, the Court stressed that the response thereto should be left to political actors. In the opinion’s concluding paragraph, the Court proclaimed that the judiciary is not authorized to “dictate this Nation’s homelessness policy” and that federal judges cannot “begin to match the collective wisdom the American people possess in deciding how best to handle a pressing social question like homelessness.”

What limits are there to a municipality’s power to promulgate anti-camping ordinances? The Court suggested that enforcement of anti-camping laws is curtailed in particular instances by the common law defenses of necessity, insanity, diminished capacity, and duress. The Court also suggested that a municipality violates due process if it enforces anti-camping laws only against homeless people. In dissent, Justice Sotomayor agreed and argued that the punishments prescribed by anti-camping laws are limited by the Excessive Fines Clause of the Eighth Amendment and that the substance of anti-camping laws is limited by the constitutional doctrine of vagueness and the due process right to travel. Finally, the Court noted that state governments can pass laws limiting a municipality’s public camping regulations, as Oregon did last year. The lesson from this case, however, is that cities are no longer meaningfully restricted by the Eighth Amendment’s Cruel and Unusual Punishments Clause.