A Supreme Court Case About the Rights of Homeless People Went Better Than Expected

No one expects the federal judiciary to solve the nation’s worsening homelessness crisis: For better or worse, the U.S. Constitution does not guarantee any kind of fundamental right to shelter. The only question at issue in Grants Pass v. Johnson, which the Supreme Court heard on Monday, is how the government can punish people who lack housing. Since 2018, the 9^th U.S. Circuit Court of Appeals has held that the Constitution prohibits the prosecution of indigent people who sleep in public places when there is no available shelter space. Grants Pass gives the Supreme Court an opportunity to overturn that rule—and, in the process, roll back long-standing limitations on cruel and unusual punishment. A majority of the court sounds inclined to do so, based in part on a suspicion that the 9^th Circuit is somehow exacerbating homelessness. Let’s be clear: It isn’t. And abolishing the 9^th Circuit’s narrow rule will do nothing to help people who lack housing or the communities in which they reside.

Grants Pass is a town in southwestern Oregon with about 40,000 residents, several hundred of whom lack permanent housing and sleep in public parks. In recent years, the City Council has attempted to drive these people out by enacting a series of ordinances that forbid them from sleeping or resting anywhere on public property. Violators are first fined, then jailed for 30 days per offense (which can pile up in mere hours). There’s no homeless shelter for adults in Grants Pass, just a religious “transitional housing” program that compels participants to work full-time without pay, forces them to attend religious services, openly discriminates against disabled people, and limits stays to one month. The town council’s president even stated that the purpose of its new laws was to make homeless people “uncomfortable enough” to leave the town. Law enforcement aggressively enforced the bans until the 9^th Circuit found them unconstitutional in 2022.

The appeals court’s decision was rooted in a 1962 Supreme Court case called Robinson v. California. In Robinson, the high court struck down a California law that criminalized addiction to narcotics. The disease of addiction, the majority reasoned, constituted a “status” that the government may not penalize under the Eighth and 14^th Amendments, which proscribe states from imposing “cruel and unusual punishments.” The act of using narcotics could, of course, be prosecuted, but a person’s mere condition as a drug addict could not.

Based on this precedent, the 9^th Circuit ruled that homelessness, like addiction, is a status that Grants Pass could not lawfully punish. And sleep, far from being a voluntary act like narcotics use, is a basic human need that unhoused people literally cannot live without. Therefore, the court declared—over vitriolic dissents from conservative judges—that the town could not enforce its ordinance against homeless people when no safe, legitimate shelter was available to them.

Advocates for homeless people were alarmed when the Supreme Court agreed to review the appeals court’s decision given the conservative majority’s extreme hostility toward the Eighth Amendment. SCOTUS has torn down pretty much every safeguard against cruel and unusual punishment that it has come across, eviscerating the principle that the amendment enshrines “evolving standards of decency” into constitutional law. The real question in Grants Pass, then, is not whether the Supreme Court will side with the town—it will. The question is how much damage it’ll do to the Eighth Amendment along the way.

On this point, the conservative justices seemed divided; the biggest surprise from Monday’s arguments may be their evident reluctance to go big. But they were arguably backed against the wall by Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. All three liberals came out swinging at Theane Evangelis, the Gibson Dunn attorney representing Grants Pass, and never let up. When Evangelis claimed that the town’s laws don’t target homeless people, Sotomayor pushed back. “The police officers testified” that “if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them.” Only people “who don’t have a home” get arrested. How, Sotomayor asked Evangelis, are they supposed to survive? Or are they just “supposed to kill themselves?” she asked.

Evangelis resisted the conclusion that Grants Pass discriminates against people without housing. She insisted, unconvincingly, that the town regulates only the “conduct” of sleeping outside, not the status of being homeless. That led Kagan to pose a simple hypothetical: “Taking Robinson as a given, could you criminalize the status of homelessness?” Remarkably, after some waffling, Evangelis suggested that, yes, the government could criminalize homelessness, because it is not “a status like drug addiction” but a series of acts that can each be outlawed. She then tried to salvage the exchange by asserting that a ban on outdoor sleeping did not amount to a ban on being homeless.

Kagan was not convinced: “Sleeping is a biological necessity,” she told Evangelis. “It’s sort of like breathing. I mean, you could say breathing is conduct too, but, presumably, you would not think that it’s OK to criminalize breathing in public.” Jackson picked up on this point, too. Robinson involved drug addiction—a condition that is common, sure, but not “universal.” This case, by contrast, involves the “basic function” of sleeping. Isn’t there an even stronger argument that the government can’t punish something that everyone must do? (In response, Evangelis stumbled over an answer about the “line-drawing problems” inherent in distinguishing “biological necessities.”)

Evangelis’ defense of Grants Pass faltered so badly that Justice Amy Coney Barrett seemed to want an escape hatch. “I don’t think we should overrule Robinson,” she told the attorney flat-out, and spent arguments searching for a narrower way to dispose of the case. Chief Justice John Roberts plainly wanted to reject the idea that lacking shelter is “consistent with the definition of ‘status’ under Robinson” because, he claimed, it can “change from one time to another.” Justice Brett Kavanaugh seemed concerned with how the 9^th Circuit’s rule functioned on the ground, fretting about homelessness as “a policy question” and “a challenging issue.” He seemed to embrace dubious assertions from cities and states within the 9^th Circuit, like California, that “it’s more difficult to have an effective homeless policy” because of court intervention.

Only Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch questioned the legitimacy of Robinson. Gorsuch called the distinction between status and conduct “slippery,” “tricky,” then finally just plain “awful.” He sounded ready to trash the whole concept. He also suggested that the Eighth Amendment does not in any way “limit states’ capacity to engage in passing laws that make conduct or actions or anything a crime”—a theory that, if adopted, would overrule Robinson and countless other precedents. To his credit, Gorsuch, unlike Thomas and Alito, had an alternative in mind: a “necessity defense,” which “has been always understood as inhering in due process from the founding,” that homeless people could raise if prosecuted for engaging in unavoidable human behavior like sleep.

Where Evangelis delivered an uneven and evasive performance, Georgetown Law’s Kelsi B. Corkran provided a shrewd and lucid defense of the 9^th Circuit’s decision. She linked the case to a long tradition limiting states’ power to criminalize “social problems like poverty,” which is in fact firmly rooted in the Constitution. And she warned of a cycle of “endless punishment” wherein homeless residents of Grants Pass are repeatedly arrested and incarcerated because of their status with no solution except banishment, which is itself cruel and unusual punishment. Corkran effectively countered Kavanaugh’s implication that the 9^th Circuit was somehow handcuffing Western states’ homeless policy, reiterating their broad authority to do everything except punish people with literally nowhere else to sleep. Grants Pass “has not ever identified any penological purpose for punishing homeless people who do not have access to shelter,” she reminded the justices; “if you ask that question, every time they pivot to encampments and fires and sanitation problems,” which the city can absolutely prohibit.

Was Corkran’s impressive performance enough to limit the damage? Possibly. There is really no chance that five justices will affirm the 9^th Circuit’s holding that the Grants Pass anti-homelessness laws amount to unconstitutional “cruel and unusual punishment.” But perhaps in siding with the town, some conservative justices will preserve Robinson and its protections against status-based “crimes.” They could leave room for homeless residents to mount a more limited challenge rooted in due process. Or they could reject the idea that sleeping bans discriminate against homeless people—an unfortunate outcome—while still acknowledging that criminalizing homelessness itself is impermissible. Then the fight will shift to the specifics of each law, as jurisdictions attempt to cloak discriminatory ordinances in neutral language.

None of that is ideal. All of it is better than a maximalist decision overruling broader constitutional guarantees against the criminalization of poverty and addiction. At this Supreme Court, we can’t hope for much better.