Supreme Court Tackles Homelessness for First Time in Decades

America’s homeless crisis is commonly viewed as a problem for major urban areas, but a rural Oregon community may wind up setting the legal standard cities and towns might use to address it.

Taking on the issue of homelessness for the first time in four decades, the US Supreme Court will hear argument on Monday in Grants Pass v. Johnson. The riverside city of 40,000 is known more for natural scenery and outdoor activities than for punishing people for sleeping outside.

The question for the court is whether ordinances fining people for sleeping in public places using blankets or other bedding violates the Eighth Amendment prohibition against cruel and unusual punishment.

Fast-growing Grants Pass has a significant housing shortage, but also has no permanent public shelter. That distinction leaves homeless advocates hopeful the justices will reject the prohibition as unlawful because the city provides no alternatives to people without housing.

Those supporting the city say state and local officials are better equipped to try to handle the situation and the Supreme Court shouldn’t limit their ability to address it in varied and creative ways. The other side says a ruling striking down those laws could refocus money and efforts on increasing housing.

“The Supreme Court’s decision in Grants Pass v. Johnson is a watershed moment for housing and human rights in America,” Michigan State University assistant professor Deyanira Nevárez Martínez said in an email.

Nevárez Martínez is with the school’s Urban & Regional Planning Program and filed an amicus brief urging the justices to rule against Grants Pass.

No Choice

University of Virginia law professor Cale Jaffe said it‘s no surprise the Supreme Court is taking up the issue after such a long break, given that homelessness is on the rise.

Homelessness has reached record levels with housing stocks tight in many places and costs at all-time highs, said Jesse Rabinowitz, communications director for the National Homelessness Law Center. The group helped bring the case challenging Grants Pass.

More than 600,000 people in the US experience homelessness on any given night, Rabinowitz said in citing 2023 data from the Department of Housing and Urban Development. Nearly half of them sleep outside.

In Grants Pass, as many as 600 homeless people live in the city, according to the US Court of Appeals for the Ninth Circuit. The nation’s largest appellate court struck down the city ordinances, siding with Gloria Johnson and others who say they are involuntarily homeless.

The city punishes “people for living without shelter access regardless of whether they have any choice in the matter,” Johnson said in her brief.

Grants Pass prohibits sleeping in public in various ways. And while the laws don’t specifically make public sleeping a crime, fees as high as $295 can lead to criminal trespass orders.

Such laws aren’t uncommon, Donald Whitehead Jr., executive director of the National Coalition for the Homeless, said on an April 10 media call.

“The situation in Oregon is pretty similar to the rest of the country,” he said while noting a “growing severity in punishment.” He pointed to a Tennessee law that made sleeping outside a felony.

Involuntary Status

In ruling against Grants Pass, the Ninth Circuit found its laws violated the Eighth Amendment.

A “person may not be prosecuted for conduct that is involuntary or the product of a ‘status,’” the Ninth Circuit said, referring to the fact that the city doesn’t provide enough shelter beds to support the homeless population, requiring them to sleep on the streets.

Those supporting Grants Pass say federal courts shouldn’t reach out and take over the issue of homelessness, but should instead leave it to state and local officials.

Timothy Sandefur, legal affairs vice president of The Goldwater Institute, a libertarian non-profit, said in an amicus brief supporting Grants Pass that the Ninth Circuit misread the cruel and unusual clause and made it harder to enforce laws.

In an effort to “impose a one-size-fits-all federal standard,” the Ninth Circuit’s ruling “ties the hands of local community leaders when it comes to dealing with this problem,” Sandefur said.

The last time the Supreme Court addressed homelessness, it upheld a National Park Service rule that prohibited sleeping in parks around Washington, including the National Mall.

Although primarily a case about the right to protest, the 7-2 majority in Clark v. Cmty. for Creative Non-Violence noted that it is not the judiciary’s role “to replace the Park Service as the manager of the Nation’s parks.”

Those challenging the ordinances say there are many things state and local governments can do to address homelessness that don’t involve criminalizing their behavior.

But in places that have chosen criminalization, it is absolutely the role of federal courts to step in, National Homelessness Law Center Executive Director Antonia Fasanelli said on Bloomberg Law’s “Cases and Controversies” podcast.

“Historically it is the Supreme Court that has ultimately stepped in when elected officials and state and local legislatures have sought to remove and ‘otherwize’ populations” of disfavored persons, she said. Those have included persons of color, those with disabilities, and impoverished communities.

The Oregon laws being challenged here are “just building on that awful, awful precedent that we have in this country,” Fasanelli said.