Future experiences of homelessness in the United States will depend significantly on a Supreme Court case that is now due to be heard later in 2024. A large group of elected officials in western states wants the court to overturn two previous federal court rulings that restricted enforcement around encampments.
Politicians backing the defendant-petitioner say they need fewer restrictions to be able to clear encampments and fine people living there if necessary. Lawyers for unhoused people argue against ending meager protections for people in encampments when governments fail to provide them with shelter.
“It has to do with whether a city can criminalize the existence of people who have nowhere to live.”
The Supreme Court’s decision, in what advocates say is the most significant case about homelessness in over four decades, will have a profound impact on the lives of unhoused people across the United States.
“The issue before the court is pretty basic and fundamental,” Ed Johnson, director of litigation at the Oregon Law Center, told Filter. He is representing the plaintiff-respondent. “It has to do with whether a city can criminalize the existence of people who have nowhere to live, and therefore have to live outside. It’s not about what many people are saying it’s about, which is the ability of a city to regulate encampments. The proposition that people with nowhere to go shouldn’t be criminally punished for living outside shouldn’t be a controversial position.”
Two Previous Federal Rulings
A 2018 ruling in the federal case Martin v. Boise basically determined that if you are sleeping outdoors and have nowhere else to go, the government cannot punish you. The Ninth Circuit federal appeals court handed down the ruling, which covers Alaska, Arizona, California, Hawaii, Idaho Montana, Nevada, Oregon and Washington.
Martin v. Boise began when plaintiffs representing unhoused people sued the city of Boise, Idaho, over its “Camping and Disorderly Conduct Ordinances.” These made it a criminal offense to camp or sleep in public or private buildings, or any public areas like streets or parks, without permission.
The court determined that “as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.” It cited the Eighth Amendment clause banning “cruel and unusual punishment.”
The city of Boise appealed the decision, but in December 2019 the US Supreme Court chose not to hear the case, leaving the ruling in place for the western US states.
Blake v. City of Grants Pass is a similar case, brought against the city of Grants Pass, Oregon. In 2018, a group of unhoused people sued the city over its anti-camping and outdoor sleeping laws, and asked the court for relief until the city could provide adequate shelter.
In 2020, the Oregon federal district court ruled to restrict the city’s enforcement against unhoused people, which the city then appealed. In 2022, the Ninth Circuit ruled, once again, that anti-camping ordinances violated the Eighth Amendment.
Powerful Support for the Current Challenge
The city is still appealing that decision, which brings us to the present. On January 12, the Supreme Court announced that it will hear the case that’s now named Grants Pass, OR v. Johnson, Gloria, et al., and weigh in on the constitutionality of both the Blake and Martin decisions.
The climate around the case has changed. In the political sphere, it’s no longer just about local disputes between a city and individual plantiffs. Now, a group of governors, mayors, sheriffs and other officials, representing some of the biggest states and including both Democrats and Republicans, has joined together in support of the position that the Supreme Court should overturn the Grants Pass decision.
“Martin did not purport to prohibit every effort by state and local governments to clear encampments.”
Gov. Gavin Newsom (D) of California has submitted an amicus brief to the court supporting the defendant-petitioner, the most high-profile official to do so. He’s joined by the cities of San Francisco, Phoenix and Los Angeles; by 18 US states; and by district attorneys, police and sheriffs for San Diego County, Sacramento County, and the states of California and Washington.
“The governor supports this modest check on government’s use of criminal prohibitions to address the homelessness crisis,” reads Newsom’s brief to the court; “… Martin did not purport to prohibit every effort by state and local governments to clear encampments or to regulate the time, place, and manner in which an unhoused person may sleep.”
The defendant-petitioner is also supported by private groups, like the Los Angeles Area Chamber of Commerce and Neighbors for a Better San Francisco.
“In many parts of the City, it is impossible to walk down the sidewalk or enter buildings because of homeless encampments—collections of tents and other personal belongings where homeless people congregate to live and sleep,” reads the Neighbors for a Better San Francisco brief. “As a result, San Francisco has been disabled from enforcing critical public safety laws, effectively requiring it ‘to surrender [its] sidewalks and other public places to homeless encampments.’”
The group claims that this situation has increased crime, caused departures of housed residents and businesses, reduced tourism and worsened conditions for unhoused people.
Voices in Opposition
But unhoused people and their advocates are continuing to fight all the way up to the Supreme Court.
“Homelessness is growing not because cities lack ways to punish people for being poor, but because a growing number of hard-working Americans are struggling to pay rent and make ends meet,” said the National Homelessness Law Center in a January 12 statement, responding to the news that the Supreme Court would hear the case. “Grants Pass, Oregon, like many cities in America, is thousands of housing units short of what is needed. The lack of housing and resulting homelessness will not be solved by putting more people in jail or issuing more fines. The solution to homelessness is safe, decent, and affordable housing for everybody.”
“It shouldn’t be going to the Supreme Court. It’s not controversial that cities that are failing to provide their residents the bare minimum needs shouldn’t also be allowed to punish them.”
Jesse Rabinowitz, campaign and communication director for the National Homelessness Law Center, believes the legal rationale behind the challenge is dubious, and that the case has only gotten this far because of the pressure brought by cities and states.
“It shouldn’t be going to the Supreme Court,” he told Filter. “It’s not controversial that cities that are failing to provide their residents the bare minimum shelter and housing needs shouldn’t also be allowed to punish them for sleeping outside with a blanket or a pillow. And the courts have agreed with that … the Supreme Court takes 60 out of 10,000 cases a year; it’s troubling to me they’re spending time deciding such a common-sense thing.”
Lawyers for unhoused people will likely focus on two main issues—arguing first that criminal and civil penalties for sleeping or camping outdoors do not help solve homelessness, and second that cities and states are not providing enough shelter and housing to meet people’s needs.
The evidence to support both contentions is plentiful. But it’s difficult to predict how the conservative-dominated Supreme Court will rule. As the Dobbs decision on abortion access showed, the court is not afraid to make a deeply controversial ruling that upends precedent. But on this case, there’s less of a partisan dividing line when at least some elected Democrats are siding with Republicans.
“My ultimate hope is it will be upheld by this Supreme Court … It is consistent with how they’ve decided in many cases.”
One expert on homelessness believes that the “originalist” and “textualist” philosophy of some of the Supreme Court’s conservative members—their inclination to interpret the plain text of the Constitution according to what they think the framers meant when they wrote it, rather than through a modern lens—could benefit the side fighting for the rights of unhoused people.
“Every time this decision has been presented, it’s been upheld,” Donald H Whitehead Jr., executive director of the National Coalition for the Homeless, told Filter. “My ultimate hope is it will be upheld by this Supreme Court … It is consistent with how they’ve decided in many cases. This Supreme Court seems to really value the Constitution, and this is clearly violations of the Eighth and Fourth amendments. If we’re abiding strictly by the Constitution, there is hope they will side with this decision.”
Whitehead believes the court’s decision to hear the case is a “mixed” bag, because any final decision will affect all 50 states—for better or worse. This crucial battle is happening in the context of an increase in governments taking measures to further punish unhoused people, he added. As an example, he cited Tennessee now making it a felony offense for someone to camp on public land, subject to a prison sentence of up to six years and loss of voting rights.
“Communities outside the Ninth Circuit were not using that decision as a way to address homelessness,” Whitehead noted. The Supreme Court’s ultimate decision, he said, “has the potential of getting other communities to stop what we see as growing criminalization, but it also opens the door for an expansion of these criminalization practices.”
If the case is decided in favor of unhoused people, it will establish basic legal protection against law enforcement for people living on the streets. If it goes the other way, it will empower and embolden governments to clear encampments and forcibly remove and punish people living in them.
So the stakes are very high. But what the case won’t do, either way, is solve the nation’s homelessness crisis. For that, city and state governments, and even the federal government, would have to commit to greatly expanding affordable housing and other services.
“If you don’t provide a safety net for people to be able to protect themselves from the elements, and have adequate shelter, then it’s not fair to criminalize them for that behavior,” Whitehead said. “On top of that, the criminalization practices actually take away resources that could be used to house them.”
Correction, January 22: This article has been edited to clarify the role of defendant-petitioners in the Supreme Court case, which was originally misstated.
Photograph of Supreme Court building by Senate Democrats via WikiMedia/Creative Commons 2.0
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