Jenny Kane / AP
Supreme Court appears to side with an Oregon city’s crackdown on homelessness
By Jennifer Ludden/NPR
Jenny Kane / AP
Updated April 22, 2024 at 7:15 PM ET
In a major case on homelessness, the U.S. Supreme Court on Monday appeared to side with an Oregon city’s crackdown on sleeping in public. The decision could have sweeping implications for the record number of people living in tents and cars, and the cities and states struggling to manage them.
The Supreme Court had declined to hear a similar case out of Boise, Idaho, in 2019. But since then rates of homelessness have spiked. An annual federal count found more than 250,000 people living in parks, on streets, and in their vehicles. Sprawling street encampments have grown larger and expanded to new places, igniting intense backlash from residents and businesses.
The current case centers on the small city of Grants Pass, Ore., which has a population just under 40,000 and is a symbol of just how widespread the homelessness problem has become. A slew of other cities and states — led by Democrats and Republicans alike — urged the justices to take up this issue.
Cities say the courts have hamstrung efforts to address homelessness
In both the Boise and Grants Pass cases, lower courts said that under the Eighth Amendment it’s cruel and unusual to fine or jail someone for sleeping on public land if there’s no adequate shelter available. But Grants Pass and many other cities across the West say those rulings have tied their hands as they try to keep their public spaces open and safe for everyone.
Grants Pass has no public shelter. But its local law essentially banned people from sleeping with a blanket or pillow on any public land, at any time.
During Monday’s arguments, the Supreme Court’s more liberal justices suggested this amounts to unlawfully targeting people simply because they’re homeless. “You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach,” said Justice Sotomayor.
Justice Kagan said sleeping is not a criminal act. “Sleeping is a biological necessity. It’s sort of like breathing. … But I wouldn’t expect you to criminalize breathing in public.”
But the court’s conservative justices said it can be hard to draw the line between someone’s conduct — which can be legally punished — and a status they are unable to change — which cannot be punished. “How about if there are no public bathroom facilities?” Justice Gorsuch asked. “Do people have an Eighth Amendment right to defecate and urinate? Is that conduct or is that status?”
Over and over, conservative justices also said homelessness is a complex policy problem and questioned whether courts like theirs should “micromanage” it.
“Why would you think that these nine people are the best people to judge and weigh those policy judgments?” Chief Justice Roberts asked.
Whatever the decision, this case won’t solve the homelessness problem
States and cities across the U.S. have struggled to manage record rates of homelessness. Some in the West have found ways to limit encampments and even clear them out without running afoul of the 9th Circuit rulings. Elsewhere, several states have taken a more sweeping approach with camping bans. Florida’s governor recently signed a law that seeks to move unhoused people off public property altogether and into government-run encampments.
Some worry that a decision in favor of Grants Pass will lead to more such moves or even a worst-case scenario of a “banishment race” if communities seek to push people out of their jurisdiction. Justice Sotomayor raised that concern during the arguments.
“Where do we put them if every city, every village, every town lacks compassion?” she said.
Grants Pass and other cities argue that the 9th Circuit’s ruling has fueled the expansion of homeless encampments. But whichever way the case is decided, it’s not likely to dramatically bring down the enormous number of people living outside in tents and vehicles. Many places simply don’t have enough shelter beds for everyone. And more importantly, they don’t have nearly enough permanent, affordable housing. The city of Grants Pass is short by 4,000 housing units; nationally, the deficit is in the millions.
That shortage has pushed rents to levels many cannot afford, which advocates say is a main driver of rising homelessness. Even where places are investing heavily to create more affordable housing, it will take a while to catch up. This Supreme Court case won’t solve any of that, but it could dramatically shape the lives of those forced to live on streets, parks and back alleys for years to come.
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Transcript :
MARY LOUISE KELLY, HOST:
The Supreme Court heard arguments today in a major case on homelessness. The case has sweeping implications for the quarter of a million people in the U.S. living on streets, in parks or in cars. The court’s conservative justices appeared to side with an Oregon city’s crackdown on sleeping in public. Well, NPR’s Jennifer Ludden was at the court. She is with me now. Hey there.
JENNIFER LUDDEN, BYLINE: Hi there.
KELLY: OK, so obviously, this is not just a town in Oregon. This is cities and towns all over the country that have a stake in how this case turns out. I mean, we know that rates of homelessness are at a record high. What specifically was the legal question before justices today?
LUDDEN: So the crux in this case is whether cities can punish people for sleeping outside if they have nowhere else to go. And this all started back in 2018. There was a landmark case heard out of Idaho, and the court said no – the lower court said, no, you cannot do this. It is cruel and unusual punishment under the Eighth Amendment. Now, the small city of Grants Pass, Ore., is challenging that ruling, which leads us to today’s arguments.
KELLY: OK.
LUDDEN: Grants Pass essentially banned people from sleeping outside with a blanket or a pillow on any public land at any time, even though it has no public shelter. And when the lower courts again said, that is unconstitutional, they appealed to the Supreme Court.
KELLY: OK. So the attorneys for Grants Pass laid out the city’s case. How did it land?
LUDDEN: Well, the court’s more liberal justices jumped in right away, accusing Grants Pass of targeting people simply because their homelessness – they’re homeless. Justice Sotomayor said, you don’t arrest sleeping babies. You don’t arrest people who fall asleep on a beach. You only arrest people who don’t have a home. At one point, when the attorney for Grants Pass was talking, Justice Kagan interrupted to say, look, sleeping is not a criminal act.
(SOUNDBITE OF ARCHIVED RECORDING)
ELENA KAGAN: Sleeping is a biological necessity. 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.
LUDDEN: Her point was the law in Grants Pass amounts to targeting who people are not what they do, what the law calls status versus conduct. And courts have said that is illegal. But conservative justices do not appear to be buying that in this case.
KELLY: OK. And what points were conservative justices making?
LUDDEN: Well, for one thing, they said over and over that it can be hard to draw this line between someone’s conduct and their status. Here’s Justice Gorsuch in an exchange with the deputy U.S. solicitor general.
(SOUNDBITE OF ARCHIVED RECORDING)
NEIL GORSUCH: How about if there are no public bathroom facilities? Can – do people have an Eighth Amendment right to defecate and urinate…
BRIAN FLETCHER: No, we…
GORSUCH: Is that conduct or is that status?
LUDDEN: There were a lot of hypotheticals like this, but the conservatives’ biggest point was how complicated homelessness policy is, and questioning whether judges should be micromanaging of that. Chief Justice Roberts said, of course, the solution is to build more shelter for people, but…
(SOUNDBITE OF ARCHIVED RECORDING)
JOHN ROBERTS: The municipalities have competing priorities. I mean, what if there are lead pipes in the water? Do you build the homeless shelter, or do you take care of the lead pipes? Why would you think that these nine people are the best people to judge and weigh those policy judgments?
LUDDEN: And that last question of his is exactly the point that lots of cities and states across the country are making, places led by Democrats and Republicans alike, who support Grants Pass, and they say they need more flexibility to keep their own public spaces safe and open for everyone without getting hit by lawsuits over how they do it.
KELLY: Well, let’s step back and look at this more broadly. If Grants Pass prevails in this case, how would it affect the country more broadly?
LUDDEN: So, of course, we don’t know how narrow or broad any decision would be. But for homeless advocates, the worry is that more places would be encouraged to enact harsher policies. Some states have already passed pretty aggressive bans on camping. Florida’s governor recently signed a law that seeks to move unhoused people off public property altogether and into government-run encampments. Cities like Grants Pass say, look, if they have more enforcement powers, they could get more people into shelters and help them find housing. But nothing in this case will solve the bigger problem, which is the severe lack of affordable housing in the U.S., which is really helping fuel homelessness.
KELLY: NPR’s Jennifer Ludden. Thank you.
LUDDEN: Thank you. Transcript provided by NPR, Copyright NPR.
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