With the homeless population at its highest level in over a decade, the Supreme Court announced last Friday that it would hear a case that could expand the criminalization of homelessness and have wide-reaching and long-lasting negative effects on unhoused people all around the country.
At the center of the case is the question of whether local governments should be able to ticket or arrest homeless people out in public even when there is no available shelter space. Advocates are already fearful that the conservative majority will issue a sweeping injury to the national homeless population that will fly in the face of previous precedent.
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“To see this Supreme Court contemplating taking away yet another set of basic civil liberties is deeply disturbing,” Julian Highsmith, the policy and communications director at the the social justice organization Coalition on Homelessness in San Francisco, said in a statement.
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The case, Johnson vs. Grants Pass, is a result of an attempt by the town of Grants Pass, Oregon, to cite and arrest unhoused people for using rudimentary cover outdoors when the town had no available shelter. The case was taken up by the Ninth Circuit Court of Appeals after Grants Pass passed an ordinance in an attempt to get around a separate 2018 ruling in the Ninth Circuit called Martin vs. Boise, which had banned ten states from criminalizing unsheltered homelessness when there was not enough shelter space.
In 2022, the Ninth Circuit ruled similarly in the Grants Pass case as it had in Martin vs. Boise, saying once again that punishing unsheltered homelessness when there were no insufficient shelter options violated the Eighth Amendment’s ban on cruel and unusual punishment.
The Ninth Circuit’s ruling led a bipartisan coalition of Democratic political leaders, cities and think tanks to petition the Supreme Court to take up the case, claiming that the Ninth Circuit had overreached and tied the hands of the government. That group included San Francisco Mayor London Breed, California Governor Gavin Newsom, the cities of Los Angeles and Portland, Republicans in Arizona and the conservative Goldwater Institute.
While Newsom has stated that he only wanted the Supreme Court to “clarify the scope and limits” of the Eighth Amendment in such cases, lawyers told Motherboard this ignores the fact that the petitioners specifically asked the court to overturn Martin vs. Boise and Grants Pass, which would free up cities and states to arrest and cite people for living outdoors more easily.
If the the Supreme Court rules with Newsom’s coalition, it could upset long-time precedent, as the court has long held that criminalizing circumstances out of an individual’s control, like drug addiction or illness, violates the Eighth Amendment.
“The only reason you want to overturn that decision is if you want to be able to use the threat of law enforcement against unhoused people without even bothering to make sure that they have a place where they could could go,” Eric Tars, senior policy director of the National Homeless Law Center, told Motherboard.
Regardless of how the Supreme Court rules, it will have repercussions across the country as cities continue to battle with local groups in the court system over their ability to further criminalize homelessness.
In San Francisco, the nonprofit Coalition on Homelessness has so far successfully argued that the city was not only in violation of Grants Pass and Martin when it cited and arrested homeless individuals who had no other place to sleep, but that it was violating San Francisco’s own policies, which require it to “bag and tag” items belonging to unhoused people rather than dispose of the property. In December 2022 , the Coalition and other plaintiffs won a temporary injunction that barred the city from using police to enforce anti-homeless laws if there was not available shelter. The injunction was reaffirmed by the Ninth Circuit last Thursday, just a day before the Supreme Court’s announcement.
A similar battle has born out in Los Angeles, where a coalition of business owners calling themselves LA Alliance for Human Rights—which also petitioned the Supreme Court to take up Grants Pass—sued the city and county of Los Angeles in an attempt to get more shelter space constructed so that officials could begin arresting and citing unhoused people. The same goes in Portland, where a sweeping camping ban was written to be in line with Martin vs. Boise and Grants Pass, and several pieces of coordinated anti-camping legislation could be rewritten to be even more punitive if the Supreme Court overturns Grants Pass and Martin vs. Boise.
While the Grants Pass case was filed in Oregon, the law firm representing the town, Gibson, Dunn & Crutcher LLP, is a New York City-based corporate law firm that has previously defended Grubhub, Uber and Postmates against lawsuits. They are the same law firm that represented Boise in Martin Vs. Boise.
Tars of National Homeless Law Center said that the tone of the Martin Vs. Boise case changed once Gibson, Dunn & Crutcher took over, as the city had previously been trying to prove they were in compliance with the law rather than seeking to overturn previous decisions.
“The message completely changed. And it was: this case is a disaster … It’s going to remove all these tools from communities for dealing with homelessness, and we’ll be left with this post-apocalyptic hellscape,” Tars said.
Tars, who will be involved in defending unhoused people in the upcoming Supreme Court case, believes this is the wrong approach. “The solution to homelessness is safe, decent and affordable housing for everybody. And this case doesn’t address that,” he said.
