Checkpoint: Prepare to Be Disappointed in Grants Pass
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The Supreme Court appears poised to pave the way for city governments hoping to criminalize homelessness. Though it’s far from a guarantee it’s not hard to imagine the court overturning precedent in the name of reshaping America in its image. However, there is some hope that the justices may choose to constrain their coming ruling to Grants Pass, sidestepping the case’s broader implications.
In the case of Grants Pass v. Johnson, the city of Grants Pass is defending its law, which criminalizes sleeping with a blanket in public, despite precedent suggesting that it’s illegal to make laws that punish people for a necessary consequence of their existence. Lower courts have ruled the law illegal, citing a 1962 decision, Robinson v. California, which said it was unconstitutional for the government to criminalize a status, like addiction, for example.
The court’s conservative majority may very well rule that such laws are broadly acceptable, a ruling that would allow municipalities or even state governments to criminalize things like sleeping, eating, or who-knows-what in public. Such a ruling would broadly enable cities across the country to crack down on their homeless population, potentially locking the homeless into an abusive relationship with the criminal justice system.
Of course, such a ruling could also allow cities to effectively banish the homeless to other communities, creating groups of homeless people wandering the countryside in search of a place where they might rest their heads for the night without fear of retribution by the state. Such a ruling might create a tapestry in the United States reminiscent of “Down and Out In Paris and London,” where the homeless wander from one shelter to the next, unable to rest their night in the same place on two consecutive nights.
However, there are a few other potentialities worth considering. Firstly, the Court, heeled by the backlash of the ridiculous behavior of some of its members and their wives, might choose to punt the issue to remain legitimate in the public eye.
For example, Justice Clarence Thomas raised the possibility that the plaintiff in the case may lack standing, meaning they did not meet the requirements to sue in federal court. Justices Sonia Sotomayor and Ketanji Brown Jackson appeared to share this concern. If these three justices could cobble together a five-justice majority the issue may become an issue for a future court to consider.
There are a few reasons for this, first, the law in question has been superseded by an Oregon provision that limits the authorities municipalities have to target homeless people. While this would be enough to render a normal case moot, the Court has recently played it fast and loose for what qualifies a case to be heard.
Furthermore, a decision like this would only kick the can down the road and the Court would likely hear a similar case in the future. There is, however, another possibility. The court could rule in a way that does not overturn the precedent set by Robinson, which would likely mean that whatever ruling they issued is narrowly focused on the specifics of this case.
This scenario would likely see Justices Brett Kavanaugh and Amy Coney Barrett joining the Court’s three liberals to issue a ruling squarely focused on the specifics of the Grants Pass situation, likely citing issues of what it would mean for liberty if a city is allowed to ban sleeping with a blanket in public areas. Something, the justices seemed concerned with during oral arguments was whether permitting a city to ban something as basic as sleeping with a blanket would open the door to even more ludicrous rules and laws concerning basic human functions. To rule in favor of Grants Pass in this scenario would then create a new question the court needs to answer: What are the limits of a city’s ability to criminalize basic human functions related to someone’s economic position? A narrow ruling against Grants Pass would also likely mean that some copycat cases would arise to test the same principal year after year, probably similar to the Colorado cake shop that always seems to be on the Court’s docket.
Of course, all of these scenarios demonstrate the fundamental absurdity of the American system in the 21st century. The fact that the Court is in the position to make a ruling like this already demonstrates the failure of the country’s political institutions to adequately address the issue of homelessness and housing more broadly.
There is no reason that the wealthiest country to have ever existed needs to have such a populous underclass. The only reason why we are left in this position as a country is because our political system disincentivizes those with the power to fix this situation from fixing it. The homeless don’t show up to the polls, and they don’t make campaign donations. They are thus not represented at any level of government.
On the contrary, people profiting from the situation in the United States related to housing and homelessness are well represented in the halls of power, whether it be homeowners, developers, landlords, or real estate investors. Until our elected government represents the constituency in need --- the homeless in this case --- there will never be a real solution to this problem, no matter what the Court does.
