Supreme Court's cold ruling criminalizing homelessness

Justice Gorsuch's horrifying opinion in the Grants Pass case recalls an earlier heartless dissent. Also: Law Dork in the media.

When Justice Neil Gorsuch was a judge seeking promotion to the U.S. Supreme Court, he faced questions about his heartless dissent in a 2016 case where a trucker was fired after leaving his trailer on the side of the road and driving to get help because he was otherwise stranded on the side of the road in the freezing cold.

We learned Friday that the focus back in 2017 by reporters, commentators, and the Senate Judiciary Committee on Gorsuch’s dissent in Alphonse Madden’s case was well placed.

Now, however, Gorsuch was writing the majority opinion in Grants Pass v. Johnson; he was doing so from his seat on the U.S. Supreme Court; and it was in a case of constitutional, not statutory, interpretation.

Gorsuch’s opinion for the 6-3 conservative majority on Friday in Grants Pass is, simply, horrifying. It renders the Eighth Amendment’s protection against status-based criminal laws all but a nullity, and encourages state and local governments to treat homelessness as a nuisance to be avoided — or even criminalized — not a crisis of humanity to be solved.

Gorsuch showed similar callousness back in 2016.

Even though every other judge to consider the matter found that the trucker’s company had violated the law when it fired Madden, Gorsuch was indignant in dissent, writing that the law in question “only forbids employers from firing employees who ‘refuse[] to operate a vehicle’ out of safety concerns. And, of course, nothing like that happened here. The trucker in this case wasn’t fired for refusing to operate his vehicle.”

Madden drove his vehicle, Gorsuch argued, so how could he be refusing to operate it?

The majority in the August 2016 ruling from the U.S. Court of Appeals for the Tenth Circuit in TransAm Trucking v. Administrative Review Board, U.S. Department of Labor explained that the word “operate” isn’t the word “drive” so it shouldn’t be read so narrowly. As Judge Michael Murphy put it for the court, “We are more comfortable limiting our review to the language Congress actually used. As the dissenting judge [Gorsuch] stated during oral argument, ‘Our job isn’t to legislate and add new words that aren’t present in the statute.’”

As Murphy noted of the facts that led Madden to leave his trailer, after two hours in the freezing cold, “his torso was numb and he could not feel his feet.”

Gorsuch was unchastened and uncaring, writing, “It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.”

Grants Pass was a similar Gorsuch opinion Friday, in another case that comes down to whether people are allowed to take actions to protect themselves from the cold.

As Justice Sonia Sotomayor wrote for the trio of Democratic appointees in dissent, “The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow.”

Because of this, she wrote, it is criminalizing people “for being homeless” if they have no other access to shelter. “That is unconscionable and unconstitutional.”

Not so in Neil Gorsuch’s world, which, as to the latter question, is our world as well for now.

As Gorsuch explained it, states and cities “have pursued a range of policies and programs” to address homelessness, including “laws that restrict camping in public places, like parks, streets, and sidewalks.” They need a big toolbox to do so, he continued:

Blocking people from using a blanket — and not the blanket itself — is apparently the necessary tool in that toolbox. And, as Gorsuch told us Friday, the Constitution is no barrier to that — at least not the Eighth Amendment.

This is so, he wrote, for essentially two reasons.

First, the majority makes it clear that it is skeptical of the 1962 Robinson v. California decision in which the court held that California’s law making the “mere status of being an addict a crime” violated the Eighth Amendment Cruel and Unusual Punishments Clause because punishing “status” with “[e]ven one day in prison” is impermissible.

If it had to reach the question, Gorsuch all but says that the court would readily reverse Robinson.

But, and second, the Grants Pass measures don’t even involve Robinson “because laws like these do not criminalize mere status.”

This is the foundation of the decision, and its disingenuousness is only matched by its poor textual analysis.

As Gorsuch detailed, “Grants Pass forbids actions like ‘occupy[ing] a campsite’ on public property ‘for the purpose of maintaining a temporary place to live.’”

Right from the start, Gorsuch is tilting the story with the use of “like” a “campsite” — given that the effect of the measures sweep much more broadly. As Sotomayor explained, “campsite” is defined in the ordinances as “any place where bedding, sleeping bag, or other material used for bedding purposes, or any stove or fire is placed, established, or maintained for the purposes of maintaining a temporary place to live.”

To Gorsuch and the court’s conservatives, such a law can be read in spite of itself into a law that has nothing to do with homelessness.

“Under the city’s laws, it makes no difference whether the charged defendant is homeless, a backpacker on vacation passing through town, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building,” Gorsuch wrote.

The only problem with that is that he is wrong.

“The majority protests that the Ordinances ‘do not criminalize mere status.’ Saying so does not make it so,” Sotomayor dissented. “Every shred of evidence points the other way. The Ordinances’ purpose, text, and enforcement confirm that they target status, not conduct. For someone with no available shelter, the only way to comply with the Ordinances is to leave Grants Pass altogether.”

As to the text, Sotomayor countered Gorsuch’s claim that it “makes no difference whether the charged defendant is homeless” by noting that “the Ordinances do not apply unless bedding is placed to maintain a temporary place to live.” In short, if you have a home, you’re not violating the law when you sleep outside with a blanket. (This is backed up, she explained, on both ends of the passage of the ordinances — their purpose and their enforcement.) After going through this, she concluded, “So much for the Ordinances applying to backpackers and students.”

Then, to Gorsuch’s claim that “Grants Pass forbids actions” and not status, she responded, “The flaw in this conclusion is evident. The majority countenances the criminalization of status as long as the City tacks on an essential bodily function—blinking, sleeping, eating, or breathing. That is just another way to ban the person.”

Importantly, Sotomayor’s point is not that cities and states can’t act — or can’t enforce actual generally applicable laws — but, rather, that the Constitution protects individuals when cities like Grants Pass go too far.

Gorsuch, along with all five other Republican appointees, held that going too far is fine so long as you add a necessary action onto it.

And though Gorsuch backed up his decision with concern about keeping cities’ toolboxes full, Sotomayor highlighted how the decision was not focused on the toolboxes of those without housing — leaving, as she put it, “the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

The only good news in the decision is that only the Eighth Amendment question was asked and answered. Other challenges — such as, as even Gorsuch acknowledged, a due process-based selective enforcement challenge — remain in the wings. As Sotomayor stated, “Grants Pass’s Ordinances may still raise a host of other legal issues” — which she then laid out “so that people experiencing homelessness and their advocates do not take the Court’s decision today as closing the door on such claims.”

Sotomayor concluded with a challenge to society — and the court — that I think is worthy of reprinting here:

Ultimately, though, it is not yet that future. For now, Gorsuch and the conservatives have — just as Gorsuch and TransAm would have done eight years ago — left people out in the cold.

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Law Dork in the media

To dig into Thursday’s Supreme Court decisions, I joined Leah Litman on a quick-turnaround episode of Strict Scrutiny. Fatima Goss-Graves and Amanda Hollis-Brusky joined us for a really important discussion of the emergency abortion care case disposition, and Leah, Amanda, and I also talked about the Securities and Exchange Commission and Environmental Protection Agency decisions, as well as the ruling rejecting the Purdue Pharama bankruptcy settlement.

Then, on Saturday morning, I went on C-SPAN’s Washington Journal to talk with Kimberly Adams about Law Dork and all things Supreme Court — with lots of time spent discussing Friday’s Loper Bright Enterprises v. Raimondo decision and what’s left for Monday.

Speaking of Monday, because the Supreme Court did not finish decisions in June, the Georgetown Law Supreme Court Term in Review panel on Monday, on which I am a panelist, is now going to begin at 1:25 p.m.

I know some D.C. folks will be there in person, but the whole day’s schedule — including a discussion about how we are in “A Crisis of Health & Democracy” — is impressive and livestreamed. So, all can check it out.