SCOTUS, but not Roberts, struggles with whether cities can criminalize homelessness

The liberal justices tried to expose a dystopian, unfeeling argument — but it wasn't clear whether it would be enough on Monday.

On Monday, the U.S. Supreme Court was faced with a dystopian, unfeeling argument from the lawyer for the City of Grants Pass in Oregon seeking to justify ordinances that have the effect of criminalizing homelessness in the city of roughly 40,000 people.

Theane Evangelis, a partner at Gibson, Dunn & Crutcher LLP, fought the purpose and consequences of the ordinances, as well as the underlying constitutional precedent that led the district court and U.S. Court of Appeals for the Ninth Circuit to block the application of the ordinances against those who are involuntarily homeless.

The underlying Supreme Court precedent at issue, Robinson v. California, is a 1962 case holding that criminalizing drug addiction, as a status, was an unconstitutional violation of the Eighth Amendment. The Ninth Circuit, in 2018, held in a case involving a Boise, Idaho, ordinance that the reasoning of Robinson applies to block “a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” The case in front of the justices on Monday followed from the 2018 decision.

Chief Justice John Roberts displayed an alarming lack of humanity throughout the arguments on Monday, strongly fighting the idea that being homeless could ever be a status because a person can get a home at any point. While other justices questioned the implementation or application of the Ninth Circuit’s rule, Roberts, instead, seemed almost incredulous that we were in court hearing this case.

In a case about whether it is possible to pass laws that all but make it impossible for homeless people to live in a city without breaking the law, I couldn’t help but notice that the highest-paid lawyer in front of the justices in the case was defending this policy — and received the most support for her argument from the wealthiest justice.

A majority of the court, however, did seem to have a problem with Grants Pass’s ordinances being applied to its homeless population this way. And yet, after two-and-a-half hours of arguments, it did not appear that a majority of the court would be willing to affirm the Ninth Circuit’s decision in full.

A ruling that sided with the challengers on more limited grounds seemed possible after a strong argument from Kelsi Corkran for the homeless people fighting the ordinances, potentially sending the case back to lower courts for further review. (Or, as Justice Ketanji Brown Jackson posed, it’s possible that the court could avoid a ruling altogether on the constitutional question due to a recently passed Oregon law that she suggested could moot this case.)

And yet, it also remained possible that a majority of the Supreme Court’s conservatives could end up saying that courts should stay out of this — letting cities do as they please and disclaiming constitutional protections, at least under the Eighth Amendment’s Cruel and Unusual Punishments Clause, for people being criminalized for lacking a home.

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The city’s primary argument is that the Ninth Circuit decision is wrong because Grants Pass is merely addressing conduct, not the status of homelessness, in its ordinance making it a crime to sleep outside, including in the city’s parks, with any “bedding, sleeping bag, or other material used for bedding purposes.”

Justice Elena Kagan pushed back on that, telling Evangelis, “You could say breathing is conduct” — a point later picked up by Corkran in summing up her arguments for the homeless people challenging the ordinances.

“The ordinances by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time,” Corkran, the Supreme Court director at Georgetown Law’s Institute for Constitutional Advocacy and Protection, said. “The only question under Robinson is whether there’s any meaningful difference between a law that says being homeless is punishable and a law that says being homeless while breathing or sleeping or blinking is punishable.”

When Evangelis attempted to expand the argument on Monday to other potential protections under the Ninth Circuit’s application of Robinson, Justice Sonia Sotomayor highlighted how extreme the Grants Pass ordinances are.

“We're talking only about sleeping with a blanket. … Here, you're not precluded from prohibiting fires. You're not precluded from prohibiting tents,” Sotomayor noted of the lower court’s injunction. “Why don't you answer the basic question?“

Evangelis responded, “So we think that it is harmful for people to be living in public spaces on streets and in parks, whatever bedding materials. When humans are living in those conditions, we think that that's not compassionate and that there's no dignity in that.”

Sotomayor shot back: “Oh, it's not, but neither is providing them with nothing to alleviate that situation.”

“This is a difficult policy question, Justice Sotomayor,” was all that Evangelis could muster in response, a common refrain from her on Monday morning.

In a striking moment, Sotomayor then summed up the inhumanity of the city’s position — inhumanity so often ignored in both Supreme Court arguments and homelessness policy.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this?” Sotomayor asked. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

It was one of the strongest arguments that I can recall since this trio of liberal justices took the bench together. They did not allow Evangelis to get away with hiding the effects of her argument or the city’s ordinances. Which was appropriate in a case about a city seeking to get rid of — or “banish,” as Edwin Kneedler from the Solicitor General’s Office argued — its homeless population.

When Evangelis tried to defend her position, Jackson pressed further, noting that sleeping is a “basic human need.”

In that sense, Jackson noted, the logic of Robinson should apply even more strongly: “Here, unlike in Robinson, where … you had at least the sort of disease state, drugs and the like, and potentially culpable acts that relate to that disease state, here, we're talking about sleeping that is universal, that is a basic function.”

The liberal trio wasn’t alone, either. At varying points, Justices Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett all expressed concern with the reaches — and purpose — of Evangelis’s argument.

That was not a mistake. I meant to include Alito, who noted to Evangelis that “the connection between drug addiction and drug usage is more tenuous than the connection between absolute homelessness and sleeping outside.”

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Then there was Roberts.

“Is being a bank robber a status?” Roberts asked both Evangelis and Corkran, dismissively addressing the Robinson argument at the foundation of the case by analogizing people without housing and people who rob banks.

At one point, Roberts asked Kneedler whether it “change[s] the analysis” if there’s a homeless shelter in a town 10 minutes away — or later, 30 miles away — that has available beds.

“I think one of the principal features here that shouldn't be overlooked is the City is seeking to banish or expel its own residents, its own citizens, people whose children can go to school in that location, who may pay taxes in that location,” Kneedler said of the 30-mile-away shelter.

Roberts, though, didn’t acknowledge there is anything to that, leaning further into this idea that he seemed to be advancing that homeless people aren’t even a part of their community.

“Let's say there are five cities all around Grants Pass and they all have homeless shelters. And yet the person wants to stay. You know, ‘I've been a Grants Pass resident for a long time. I don't want to go to the one of those shelters.’ Can that person be given a citation?”

Justice Clarence Thomas also expressed skepticism of applying Robinson to a law that didn’t explicitly name a status — even if it only applied to a status-based group.

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Ultimately, the outcome will come down to how Alito and the three Trump appointees come down.

Barrett appeared most concerned with Grant Pass’s arguments — asking several probing questions of Evangelis and her argument — whereas Gorsuch and Kavanaugh raised broader questions to Kneedler about whether courts should be in charge of overseeing such homelessness policies.

Several justices asked about the implementation of the rule. After Alito posed some questions to Kneedler about how police would determine whether a person is homeless and without a place to go, for example, he told him, “I'm just wondering how this is going to be administered on a daily basis.”

Several justices asked about the implications for other cases — “line-drawing questions,” as Kagan put it — if the Ninth Circuit’s ruling is upheld by the Supreme Court. Gorsuch pushed Kneedler hard on whether the Ninth Circuit’s ruling could lead to a drug addict or alcoholic to “make the same exact argument.” When Kneedler stumbled in responding, eventually Jackson jumped in, returning to her point about sleep being a basic human need by noting that “those two things are different. … [I]t's not as though everyone engages in drug use.”

Gorsuch also asked whether the Eighth Amendment was the right place to look for these protections at all, suggesting that necessity-related claims are more often considered under the Fourteenth Amendment’s due process protections. There was also a related discussion about whether a necessity defense under Oregon law would eliminate the need for this ruling.

And yet, at the end of the day, Grants Pass’s ordinances criminalize homelessness while the circumstances that lead to homelessness would remain unchanged under the ordinances.

“You've said several times that it's a difficult policy question, a complicated policy question. I think everyone would agree with that,” Kavanaugh said to Evangelis at one point near the end of her argument.

“How does this law help deal with the complicated policy issues?”