Calvin Mouw 
The City of Grants Pass, Oregon, had an ordinance in their Municipal Code that prohibited “activities such as camping on public property or parking overnight in the city’s parks.” Violations of this code could “trigger a fine, while multiple violations” could “result in imprisonment.” Grants Pass used this code to eradicate the problem of homelessness in their city.
In October of 2018 the Oregon Law Center, representing Debra Blake (deceased) and then Gloria Johnson and John Logan, filed a complaint that the city of Grants Pass used this ordinance to try “to run homeless people out of town.” They claimed that punishing someone for sleeping in public when there is no place else to go violates the 8th Amendment’s prohibition on “cruel and unusual punishment.”
In July 2020, the District Court held that the city’s ordinances regulating homelessness were unconstitutional. Grants Pass appealed that decision to the 9th Circuit Court which upheld it in a three-judge decision. The Circuit Court held “that the Eighth Amendment’s Cruel and Unusual Punishments Clause bars cities from enforcing public-camping ordinances like these against homeless individuals whenever the number of homeless individuals in a jurisdiction exceeds the number of ‘practically available’ shelter beds,” 920 F. 3d 584, 617.
That decision was appealed to the US Supreme Court and in the City of Grants Pass, Oregon v. Johnson (2024) the Supreme Court justices voted 6-3 to overturn.
That decision and vote were easily predictable as ideology carries the day in much of what the Supreme Court does. The rest of the story is a bit more complicated.
Thinking Dimensionally: The Decision
Finding patterns in the Supreme Court’s decision-making is an easy game. You will see an occasional deviation depending on the issue, but just knowing whether a justice is liberal or conservative gives you a lot of predictive power. Knowing their philosophy also helps. Currently referred to in the context of textualism, some justices decide constitutionality by looking at the words printed on paper, while others interpret based on what they think was the intent of the legal document.
In the Grants Pass case, the Supreme Court overturned two prior decisions by the 9th Circuit; Martin v Boise (2018) which banned local governments from penalizing people for sleeping in public when there were no available shelter beds; and Johnson v. Grants Pass (2020) which extended that prohibition to public camping bans that punished people for sleeping outside when no shelter was available. In those decisions, the 9th Circuit’s reasoning was based on the 1962 Supreme Court case Robinson v. California. At that time, and in that case, the Supreme Court struck down a California law that made it illegal to be addicted to drugs.
When you create a law that only applies to a certain class of people, it is known as a status offense. The Supreme Court claimed the 8th Amendment bans “status crimes,” and being addicted to drugs was a status crime. In the Grants Pass case, the 9th Circuit reasoned that “being homeless” is a status crime, and therefore is covered by the 8th Amendment.
Supreme Court Justice Neal Gorsuch, a proud textualist, disagreed. In writing for the majority, he made two claims. One, that the Grants Pass law banned the conduct of “camping,” not the conduct of “homelessness;” and that the banning of camping in a park applied to everyone, not just to those who are homeless. Therefore, the homeless have no status. And two, Gorsuch also argued that the penalties instituted were “common practice penalties,” and did not constitute anything that looked cruel and unusual.
Supreme Court Justice Sonia Sotomayor wrote for the Minority and was joined by Justices Kagan and Jackson. According to Sotomayor, “It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles.”
“The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow,” Sotomayor continued, “For people with no access to shelter, that punishes them for being homeless. That is unconscionable and unconstitutional. Punishing people for their status is ‘cruel and unusual’ under the Eighth Amendment.”
For the liberal justices, the homeless do have status; and following any current standard of human decency, arresting them for this when they have no place else to go is cruel and unusual.
The O Lot Safe Sleeping site at Balboa Park in San Diego on March 22, 2024. Photo by Kristian Carreon for CalMatters
When Ideology Breaks Apart
The 9th Circuit ruling in the Martin case (2018) was binding on all the cities and towns in the Western Circuit of the US. The problem, in part exacerbated by COVID, was that cities found it increasingly difficult to enforce anti-camping laws because of the lack of housing options. Many cities in California including San Francisco, Sacramento, Chico, and San Rafael passed laws only to have them delayed or halted from being enforced by lawsuits and legal challenges.
San Francisco was sued in September of 2022 by the Coalition on Homelessness, which challenged how they were trying to resolve the problem of homeless encampments. A District Judge issued a preliminary injunction that expanded the 9th Circuit’s precedents, putting San Francisco in a position where they could not implement any of their considered policies. They were not happy.
They wanted clarity, and so, two prominent liberals, City Attorney of San Francisco David Chiu and the Governor of California Gavin Newsom filed separate “friend of the court” briefs, and joined Grants Pass in asking the Supreme Court to take up the case.
They did not take sides in this case; they just wanted the Court to act. According to David Chui, “It does not make sense to punish status or criminally prosecute homeless individuals for being homeless,” But at the same time, the 9th Circuit “went well beyond and misapplied the law. It has left cities like San Francisco without the necessary tools to compassionately address homelessness and ensure our streets and public spaces are safe and accessible to all. The Supreme Court should correct this legal error in Grants Pass and allow cities to effectively combat our homelessness crisis.”
This was a gamble they felt they had to take, and when the decision finally arrived, they welcomed it.
David Chiu: “The decision is going to provide us with more flexibility in how we address this.”
San Francisco Mayor London Breed: “This decision by the Supreme Court will help cities like San Francisco manage our public spaces more effectively and efficiently.”
California Governor Gavin Newsom: “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 wellbeing of our communities.”
Other liberals disagreed and condemned the ruling.
What is Gavin Newsom Thinking?
Newsom knows that the most visible evidence of homelessness is in urban areas and that the people governing those areas are going to be opposed to criminalization as a policy.
Lindsey P. Horvath is the Chair of the Los Angeles County Board of Supervisors and the Los Angeles Homeless Services Authority (LAHSA) Commission: “I want to be crystal clear: The criminalization of homelessness and poverty is dangerous. It does not work. And it will not stand in Los Angeles County.”
Patricia Nix-Hodes is the director of The Law Project at the Chicago Coalition for the Homeless: “Just because the Supreme Court has overturned this order doesn’t mean cities should just go into a mode of being reactionary and criminalizing people for biological necessities,” she said. “Particularly in Chicago and Illinois, I think there is a recognition that criminalization is not effective.”
In his eyes this is strategic. He is willing to trade for bad policy in conservative areas for the ability of liberals to act in all the rest. He may also think, as do many other Democrats, that it is time to change perceptions of how Democrats deal with homelessness. March of 2024 Gallup surveys show that Hunger and Homelessness is third on the list of Americans’ Issue Concerns, just behind Inflation and Crime and Violence.
Democrats take a beating on all these issues, and Newsom particularly gets blamed for California’s homeless problems. Shifting to the “right” on this issue makes political sense, and it also restores some juice to the idea that this is still an ideological issue.
