The Supreme Court doesn’t seem eager to get involved with homelessness policy

Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be.

The Supreme Court’s ultimate decision in Grants Pass v. Johnson probably isn’t going to end well for homeless people. The case, which asks whether a city in Oregon may enact so many restrictions on sleeping in public and similar behavior that it amounts to an effective ban on being unhoused, drew many questions from justices skeptical that the federal judiciary should play much of a role at all in addressing homelessness.

That said, there is an off chance that Justices Brett Kavanaugh and Amy Coney Barrett might join with the Court’s three Democratic appointees to permit a very narrow injunction blocking the web of anti-homelessness ordinances at issue in this case. Barrett, in particular, seemed concerned by the fact that the city of Grants Pass, Oregon, “criminalizes sleeping with a blanket” while outside.

The bulk of the Court’s questions, however, and especially the questions from the Court’s Republican appointees, focused on the difficult “line-drawing” questions that arise once the Supreme Court says that there are constitutional limits on what the government can do to criminalize behaviors that are associated with homelessness.

If a city cannot criminalize sleeping in a public park with a blanket, for example, can it criminalize public urination or defecation by someone who does not have access to a toilet? Can it criminalize lighting a fire in public to stay warm? And does the answer change if the person who lights the fire needs to do so in order to cook?

Given these difficult questions, many of the justices — and especially Chief Justice John Roberts, Justice Samuel Alito, and Justice Neil Gorsuch — suggested that maybe the courts should stay away from homelessness policy altogether and let local governments sort out how they want to deal with this issue.

Meanwhile, at least three justices — Justices Clarence Thomas, Sonia Sotomayor, and Ketanji Brown Jackson — floated the possibility that the federal judiciary may lack jurisdiction to hear this case to begin with. Such a decision would allow the Court to punt on the broader question of whether the Constitution permits the government to effectively criminalize homelessness.

Given the morass of competing concerns raised by different justices, it is difficult to predict what the Court’s opinion will ultimately say — although, again, it is unlikely that Grants Pass will end in a significant victory for people who lack shelter.

Grants Pass turns on the difference between “status” and “action”

This case asks how the Court should apply its decision in Robinson v. California (1962), which struck down a California law making it a crime to “be addicted to the use of narcotics.” Robinson reasoned that the government may not make it a crime simply to be something — what the Court called a “status” crime — so a state cannot arrest someone simply for being a person with a drug addiction.

That said, Robinson does permit a state to punish “a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration.” So it is constitutional to punish someone for actions that are closely tied to their status as an addict, even if the addiction itself cannot be a crime.

The issue in Grants Pass is that the city enacted a web of ordinances that do not explicitly ban being homeless within the city’s borders — that is, they do not actually say that someone can be charged with a crime simply for existing without a permanent address. But the plaintiffs in this case, unhoused residents of Grants Pass, Oregon, argue that the city enacted so many restrictions that it is inevitable that any homeless person in that city will eventually violate one, and thus these ordinances amount to an effective ban on the status of being homeless.

Among other things, the city forbids so much as wrapping yourself in a blanket while sitting or lying down in public. Because it is often very cold in Grants Pass, that means that an unhoused individual in that city has nowhere to sleep.

At least some of the justices appeared unconcerned with the fact that Grants Pass is effectively criminalizing an activity that every unsheltered person in the city will have to do eventually: sleeping. Gorsuch, for example, accused Edwin Kneedler, the Justice Department lawyer who argued that Robinson should give some protection to homeless people in this case, of trying to “extend Robinson.”

In Gorsuch’s view, Robinson was strictly focused on explicit bans on living with a particular status. So, just as the government cannot criminalize addiction itself but can prohibit activities commonly associated with addiction (such as drug use), it also is free to criminalize any activity associated with homelessness — even if it is inevitable that a particular homeless person will engage in that activity.

Roberts, meanwhile, tossed out various competing theories for why he might rule in favor of the city in this case. At one point, he warned that a too-broad definition of what constitutes a status crime could prevent the government from criminalizing the “status” of being a bank robber. At another point, he suggested that the status of being homeless is too transient to qualify for protection under Robinson, pointing out that someone may gain or lose access to shelter on any particular day.

The Chief’s overarching concern, however, appeared to be that courts are just not well-suited to address homelessness policy. Why would someone think that “these nine people,” meaning himself and his colleagues, are better suited to decide whether a city should focus its limited resources on addressing homelessness and not, say, replacing lead pipes or some other important problem?

Not every justice was as skeptical of the plaintiffs’ arguments as Roberts and Gorsuch, but even some of the more sympathetic justices worried about the courts getting too involved in addressing homelessness. Barrett, for example, pointed out that Grants Pass is a “pre-enforcement” case — meaning that the lower courts forbade the city from enforcing its ordinance against anyone experiencing “involuntary” homelessness, regardless of that person’s individual circumstances.

Barrett suggested that a better approach might be a narrow Supreme Court decision holding that Robinson may still protect some unhoused individuals, but also holding that individual homeless people must wait until they are charged with violating the law and then raise Robinson as a defense against those charges. The advantage of this approach is that it would mean that a court could determine whether this particular individual was truly unable to exist in Grants Pass without violating the city’s ordinances.

And there’s also a possibility that the Court might make this case go away without deciding it at all.

The federal courts may not have jurisdiction over this case

No one is allowed to file a federal lawsuit challenging a particular law unless they can show that they’ve been injured in some way by the law they are challenging, a requirement known as “standing.” Federal courts also typically lose jurisdiction over a case challenging a particular law if that law ceases to operate against the plaintiffs, rendering the case “moot.”

As at least three justices noted at oral argument, there are plausible arguments that the plaintiffs in this case either lack standing or that their case has become moot.

Thomas and Sotomayor raised a potential standing problem. Robinson says it is unconstitutional to make it a crime to have a particular status, but it’s less clear whether Robinson prohibits civil lawsuits arising out of an individual’s status. As Thomas noted, it’s not clear whether any of the plaintiffs named in this suit have actually been hit with a criminal sanction (as opposed to a civil fine), so they may lack standing to assert their claims under Robinson.

Meanwhile, Jackson flagged a potential mootness problem. The state of Oregon, she noted, has passed a law that limits Grants Pass’s (or any other municipality in Oregon’s) authority to target homeless individuals with ordinances like the ones in this case. So there may no longer be a live conflict between the plaintiffs in Grants Pass and the city because state law now forbids the city from enforcing its ordinances against those plaintiffs.

A decision on standing or mootness grounds would most likely delay a reckoning on whether the law can criminalize homelessness, but it is unlikely to put that dispute off altogether.

That’s because a 2018 decision by the United States Court of Appeals for the Ninth Circuit held that the Constitution “bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” That decision will remain in effect unless the Supreme Court modifies it or tosses it out, so another jurisdiction in the Ninth Circuit (which encompasses nine western states) could raise the same question presented by Grants Pass in some future case.

But the justices did appear uncertain how they want to resolve the difficult line-drawing questions raised by Grants Pass. A decision punting the case on standing or mootness grounds would, at the very least, buy them more time to think about those questions.