city of grants pass v johnson
Don’t Let the Supreme Court Get the Last Word on Housing Justice
New laws criminalizing the state of being homeless will not pass, and existing laws will not be retained, if we the people reject them.
Yesterday’s Supreme Court decision in City of Grants Pass, Oregon v. Johnson was an abomination. Justice Sonia Sotomayor had it right when she said that criminally punishing people for sleeping outside when there is no shelter available to them is “unconscionable and unconstitutional.”
Alas, six of her fellow justices disagreed, ruling that fining and imprisoning people just because they are homeless does not violate the Eighth Amendment prohibition against cruel and unusual punishment. So these vile, counterproductive responses to our housing crisis have been held to be constitutional.
But the second half of Justice Sotomayor’s verdict is alive and well: Punishing people because they are unhoused is unconscionable. The Supreme Court failed to stop this hateful practice, but we can.
Laws that imprison people for being unhoused are just as unconscionable today as they were before the Supreme Court ruling.
In my work teaching a law school clinic where we defend people facing eviction, and in research and writing as part of a book project, I have spent the last few years researching and writing about inspiring housing rights campaigns across the country.
Tenant unions, religious groups, civic organizations, labor unions, and others have come together to lobby local officials in Louisville, confront corporate landlords in North Carolina, run candidates for office in Kansas City, commit civil disobedience in Connecticut, convene phone banks in Tacoma, and fight like hell in dozens of other communities, too. They have won victories like bans on cold-weather and school-year evictions, referendums creating huge boosts in affordable housing funds, ceilings on rent increases, and protections against unlawful evictions.
This growing movement demands the fulfillment of the human right to housing. The people in this movement, not a half-dozen unelected, lifetime-appointed elites in black robes, will have the last word on how we treat our unhoused sisters and brothers.
That was always going to be the case, no matter how the court decided Grants Pass. As a practical matter, the Supreme Court majority only ruled that anti-homeless legislation is allowable—not that it is advisable, much less required. New laws criminalizing the state of being homeless will not pass, and existing laws will not be retained, if we the people reject them.
More broadly, transformative justice always comes from the bottom up, not from court decisions handed down from on high. Compare the anti-abolition movement to the Dred Scott decision sanctioning slavery, the civil rights movement to the Plessy v. Ferguson decision that enshrined “separate but equal,” the labor movement to multiple anti-worker decisions like the Hammer v. Dagenhart ruling that struck down laws prohibiting child labor.
During one of my visits to the amazing advocates of the Louisville Tenant Union, I heard one of the tenants tell her story. She and her children had not only been unlawfully evicted, she was wrongly arrested and imprisoned in the process. Judges did not save her, and law enforcement certainly didn’t. Instead, she found support and justice when she joined together with her fellow tenants.
“The powers that be told me I was crazy, but that’s harder to say when I am standing next to 100 other people who have gone through the same thing,” she said. “We are the ones to keep us safe.”
She is right. Laws that imprison people for being unhoused are just as unconscionable today as they were before the Supreme Court ruling. Together, we can stop them. Together, we can keep all of us safe.
'Unfathomably Cruel': Billionaire-Backed Justices Rule in Favor of Criminalizing Homelessness
"Maybe the right-wing justices could empathize with the most vulnerable Americans if they spent less time jet-setting on luxury vacations on their wealthy benefactors' dime," said one critic.
"SCOTUS just criminalized homelessness."
So said numerous legal experts and advocates for the unhoused Friday after the U.S. Supreme Court's right-wing supermajority ruled that local governments can enforce bans on sleeping outdoors, regardless of whether municipalities are able to offer them shelter space.
In a 6-3 decision along ideological lines, the justices ruled in City of Grants Pass, Oregon v. Johnson that officials can criminalize sleeping and camping on public property including parks, even when housing options are unavailable or unaffordable.
"We are disappointed that a majority of the court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go," said Ed Johnson, director of litigation at the Oregon Law Center, which represented unhoused Grants Pass residents in the case.
The decision overturned a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that found bans on outdoor sleeping violated the 8th Amendment's proscription of cruel and unusual punishment.
"Homelessness is complex. Its causes are many. So may be the public policy responses required to address it," Justice Neil Gorsuch wrote for the majority. "A handful of federal judges cannot begin to 'match' the collective wisdom the American people possess in deciding 'how best to handle' a pressing social question like homelessness."
Gorsuch suggested that unhoused people could invoke "necessity... insanity, diminished-capacity, and duress defenses" when they are prosecuted for poverty-related offenses.
In a dissent calling the criminalization of unhoused people "unconscionable and unconstitutional," Justice Sonia Sotomayor wrote that "sleep is a biological necessity, not a crime."
"For some people, sleeping outside is their only option," she noted.
Sotomayor continued:
Homelessness is a reality for too many Americans. On any given night, over half a million people across the country lack a fixed, regular, and adequate nighttime residence. Many do not have access to shelters and are left to sleep in cars, sidewalks, parks, and other public places. They experience homelessness due to complex and interconnected issues, including crippling debt and stagnant wages; domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.
"It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles," Sotomayor asserted. "Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested."
"The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused," Sotomayor added. "This court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular."
Attorney Theane Evangelis, who represented Grants Pass in the case, cheered the decision, arguing that the 9th Circuit ruling had "tied the hands of local governments."
Some leaders in places where the homelessness crisis is most acute welcomed Friday's ruling, including Democratic California Gov. Gavin Newsom, who filed an amicus brief in the case, and London Breed, the Democratic mayor of San Francisco, which also filed an amicus brief.
"Gorsuch extensively cites San Francisco's amicus in the decision,"
noted Raya Steier, a San Francisco-based attorney who led the successful campaign to pass a local ballot measure taxing the wealthy to generate hundreds of millions of dollars in revenue for Covid rent relief and affordable housing. "Congratulations London Breed and David Chiu, this is now your legacy."
Economic justice advocates said rising inequality and housing costs have played a key role in driving the U.S. unhoused population to a record 650,000. If all the unhoused people in the country came together to form a city, it would be the nation's 23rd-largest—ahead of Las Vegas, Boston, Detroit, and Portland, Oregon—based on 2020 Census figures.
"We are in the midst of a crisis where housing is unaffordable for millions of Americans. Millions of us are just one paycheck away from losing our homes," New York-based Center for Popular Democracy Action said in a statement. "Today, the Supreme Court has made the morally bankrupt decision to allow people experiencing homelessness to be persecuted and punished just for existing, while denying them shelter and safety as a human right."
"For those who are unhoused, this will mean fines, tickets, and even incarceration for a vulnerable community already abandoned by city and state authorities," the group added.
Referring to the high court's 2010 Citizens United v. Federal Election Commission ruling, many social media users said that "corporations are people" but "the homeless are not."
Others pointed to the millions of dollars worth of gifts and other perks—many of them undisclosed—lavished upon Supreme Court members, especially far-right Justices Clarence Thomas and Samuel Alito, by right-wing billionaires, some with business before the court.
"Today's decision shows how little the MAGA supermajority cares about struggling Americans," said Tracy Adair, communications manager at Stand Up America, a New York-based pro-democracy group. "It is unfathomably cruel to punish unhoused individuals for existing on public property when they have nowhere else to go."
"Maybe the right-wing justices could empathize with the most vulnerable Americans if they spent less time jet-setting on luxury vacations on their wealthy benefactors' dime," Adair added.
Advocates for the unhoused stressed that the solution to homelessness is housing, not criminalization.
"Cities should not punish people for being poor," said Jennifer Friedenbach, executive director of the Coalition on Homelessness, a housing justice and human rights group serving San Francisco. "The solution is, and has always been, safe and affordable housing."
In response to the ruling, the National Homelessness Law Center is calling on the Biden administration to invest at least $356 billion next year to fund universal rental assistance, upgraded public housing, a national housing trust fund, eviction and homelessness prevention programs, and voluntary supportive and emergency services.