Sotomayor Asks One Damning Question in Supreme Court Homelessness Case

The Supreme Court on Monday heard arguments on perhaps the most consequential case on homeless policy in decades, weighing how far cities can go in criminalizing people for sleeping outside.

And liberal Justice Sonia Sotomayor kicked things off with a particularly damning hypothetical.

Under a law punishing people for sleeping outside, would people who stargaze outside not be punished? What about people who fall asleep on the beach? Or babies in public with blankets over them?

Sotomayor’s line of questioning in City of Grants Pass, Oregon v. Johnson highlighted the obvious flaws in the 2019 law that the court is considering. The town of Grants Pass, which has no public homeless shelters, effectively banned homelessness by imposing escalating fines starting at $180 on those who sleep outside. One of the original plaintiffs in the case against the city had over $5,000 in penalties before she died.

The Supreme Court’s decision in this case will determine whether localities can criminalize homelessness by punishing those who sleep out on streets using tents, blankets, or even a piece of cardboard. The court must weigh if doing so when no beds are available violates the Eighth Amendment and constitutes cruel and unusual punishment.

And like Sotomayor, the other liberal justices weren’t so impressed.

The Grants Pass legal team tried to argue that homelessness is “conduct,” something someone does, rather than “status,” something that someone is. But justice Elena Kagan pushed back saying matter of factly “homelessness is a status, it’s a status of not having a home.”

“Sleeping is a biological necessity,” she added. “It’s sort of like breathing, you could say breathing is conduct too but presumably you would not think it’s okay to criminalize breathing in public.” For a homeless person who has no place to sleep, Kagan continued, sleeping in public is the same as breathing in public.

“It seems both cruel and unusual to punish people for acts that constitute basic human needs,” Justice Ketanji Brown Jackson told lawyer Theane Evangelis, whose previous legal work for Uber and Grubhub has been described as “keeping the wheels of the gig economy turning.”

As the hearing continued, both Sotomayor and Jackson became increasingly incensed with Evangelis, who complained about the crime and unsanitary nature of unsheltered encampments, which she called harmful and dangerous.

“Suppose the city decided that it was going to execute homeless people... It would solve the problems that you are talking about,” Jackson quipped.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this, where are they supposed to sleep?” asked Sotomayor. “Are they supposed to kill themselves not sleeping?”

Evangelis continued that homelessness is a difficult and complicated problem.

But as Sotomayor responded: “What’s so complicated about letting someone somewhere sleep outside with a blanket if they have nowhere to sleep?”