The Supreme Court upheld laws that single out homeless people for punishment in Friday’s Grants Pass v. Johnson, a 6–3 decision with all three liberals in dissent. On Saturday’s episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the decision with Stanford Law professor Pam Karlan, who served in the Biden administration as deputy assistant attorney general in the Civil Rights Division of the U.S. Department of Justice. A portion of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: Because the Supreme Court is flooding the zone with major decisions, Grants Pass is likely to get lost, and that’s by design. But it seems incredibly important. While billionaires and oligarchs are scoring huge victories at this court, you know who lost big time? People just trying to sleep.
Mark Joseph Stern: No way around it—this is a horrible decision for homeless people, especially those who are disabled. For several years the U.S. Court of Appeals for the 9th Circuit has held that it’s cruel and unusual under the Eighth Amendment to punish an individual for sleeping outside when they have nowhere else to go because there’s no available shelter. That, the appeals court held, is punishing people for the status of being homeless, rather than any particular kind of conduct. There’s a lot of misinformation out there that blames the West’s homelessness crisis on the 9th Circuit’s decisions, but frankly, these cases mostly tinker around the edges of the problem. They allowed the government to ban encampments, individual tents, public urination, and similar problems; the one rule was that it couldn’t criminalize actual homelessness by punishing people for sleep, a biological necessity.
Anyway, Grants Pass is a town in Oregon that launched a crusade to drive out its homeless population. Justice Sonia Sotomayor’s dissent shows pretty conclusively that lawmakers decided to target these individuals through a stringent ban that made it a crime to sleep outside, even when there’s zero available shelter. It let officers ticket sleeping people then jail them for repeat offenses. The 9th Circuit found that the ban was unconstitutional when imposed in that manner. But the Supreme Court, led by Justice Neil Gorsuch and joined by all the other conservatives, reversed the 9th Circuit on Friday.
Gorsuch held that the Grants Pass law, and others like it, don’t violate the Eighth Amendment because it doesn’t punish the “status” of being homeless, but rather the “conduct” of sleeping outside. He feigns empathy toward the unhoused, but in reality just leaves them at the whims of people who don’t want to see or think about them. Again, the effects on the ground probably won’t be huge. And the court declined to overrule the prohibition against punishing people for “status.” But the decision absolutely strips homeless people of the one constitutional protection they had from being targeted, fined, and jailed because they couldn’t afford to have a roof over their heads.
Pam Karlan: The distinction between status and conduct comes from the Supreme Court’s 1962 decision in Robinson v. California. And Justice Clarence Thomas had a concurrence in which he said the court should reverse Robinson, because he doesn’t think it’s cruel and unusual punishment to punish somebody for their status. At least the majority seems to understand that you can’t simply make it a crime to be homeless, standing alone. Under Justice Thomas’ version of things, you could make it a crime to be homeless, even if you weren’t asleep outside. This kind of gratuitous cruelty is coming from somebody who can park his RV in a Walmart parking lot and sleep if he doesn’t already have a roof over his head. Not everybody has an RV given to them by their friends.
Stern: Or a super yacht in the South Pacific.
Lithwick: Or a private jet to go salmon fishing. Mark, I think you are making the point that this is the one-two punch. The Supreme Court is weakening Robinson, hollowing it out without overturning it, and then Justice Thomas is saying, Oh, but I would totally overturn it.
Then on the other side is Justice Sonia Sotomayor in dissent. There’s a lot of talk about how she’s the “people’s justice,” constantly giving a voice to those who have no power. And I want to point out one thing I found incredibly striking in her dissent, which is that she’s not just talking about the homeless as real people. She’s also saying that people become homeless because of the decisions made by government. She writes that people become homeless for many reasons, including “crippling debt and stagnant wages; domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.” Some people “are one unexpected medical bill away from being unable to pay rent.”
Individuals “with disabilities, immigrants, and veterans face policies that increase housing instability.” She talks about people who’ve lost housing in Oregon “because of climate events such as extreme wildfires across the state, floods in the coastal areas, and heavy snowstorms.” Tell me if I’m overreading this. But I read her dissent as saying: If you dismantle the administrative state, and disable the government from dealing with crises involving climate and housing and mental health and health care generally—all of which the Supreme Court keeps doing—you’re going to have more of these problems, not fewer. In some ways, this is almost like a callback to the majority’s attack on the regulatory state and the government, and endless decisions in favor of rich people who win all the time. It’s all bundled up in this deeply physicalized recitation of what it means to be homeless and why you got there.
Karlan: Absolutely. I mean, these things are all connected with each other, right? If you don’t have social services, if you don’t have proper housing and health care, this is what happens. Think about the case earlier this month, Moore v. U.S., where the plaintiffs wanted to essentially prevent taxation on wealth. In that case, it failed. But this is an attack on the modern social welfare state across the board.
Stern: I don’t think it’s a coincidence that Justice Sotomayor is the only justice with a disability. She has a much better sense of what it might mean to deal with a physical issue without having shelter. And note that she puts the climate crisis in the foreground, pointing out that some people are homeless because climate change has hit Oregon with unprecedented wildfires and flooding and other anomalous events. Well, what’s driving the climate crisis? Greenhouse gas emissions that the Supreme Court won’t let the government limit! So I absolutely agree that she weaves it all together in a masterful way. Her dissent is very much about what happens when the courts dismantle the legal structures that are supposed to protect us from the many harms she lists.
Karlan: With this court, it’s almost as if Ebenezer Scrooge has become a justice. “Are there no workhouses for these people?” We are going back to the 19th century as fast as the Supreme Court can take us there.
This is part of Opinionpalooza, Slate’s coverage of the major decisions from the Supreme Court this June. Alongside Amicus, we kicked things off this year by explaining How Originalism Ate the Law. The best way to support our work is by joining Slate Plus. (If you are already a member, consider a donation or merch!)