During oral arguments on Monday in a key case involving the policing of homeless encampments, Supreme Court justices questioned lawyers about what it means to be homeless, when people with nowhere to go should be allowed to sleep outside, and how far municipalities should be allowed to go to enforce anti-camping laws.
Theane Evangelis, a lawyer representing the small southern Oregon city of Grants Pass, told the justices that anti-camping laws are “essential” to prevent the proliferation of unsanitary homeless camps and to ensure safety. She said West Coast cities have had their hands tied by two Ninth Circuit rulings, including Johnson v. Grants Pass, that found that laws targeting camping by people who are involuntarily homeless and have nowhere else to go violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
Kelsi B. Corkran, a lawyer representing homeless residents of Grants Pass said that municipalities have several options to address homelessness, but they shouldn’t be allowed to implement a “24/7 citywide sleeping ban” that subjects the homeless to “endless punishment.”
During the more than two-hour hearing, which started at 10 a.m., the court’s liberal judges, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, hammered Evangelis over Grants Pass’s ordinance that prohibits sleeping in public with a blanket or bedding.
While she acknowledged that regulating growing homeless camps is a “hard policy problem,” Kagan said that sleeping is a “biological necessity” like breathing. For people who are truly homeless, “sleeping in public is kind of like breathing in public,” she said.
While Evangelis argued that the Grants Pass ordinance is generally applicable to everyone, Sotomayor blasted it, saying that in practice it is only enforced against the homeless — not stargazers who fall asleep while looking at the night sky or people who doze off at the beach. She said the intent of the ordinance is to remove every homeless person, and to “give them no public place to sit down with a blanket or lay down with a blanket and fall asleep.”
Evangelis said that it is not compassionate to allow people to live in squalid homeless camps.
“Neither is providing them with nothing,” Sotomayor replied. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”
Conservative justice Samuel Alito joined his more liberal colleagues, questioning what options exist for a homeless person who truly has nowhere else to go. “Does that person have any alternative other than sleeping outside? They have none,” he said.
Much of the debate centered on the similarities between criminalizing homelessness generally and criminalizing drug addiction. In the 1962 case, Robinson v. California, the court ruled that laws targeting addiction, rather than acts like selling or possessing drugs, are unconstitutional.
Some of the conservative justices focused their questioning on when cities can require people to accept help, and at what point they should be allowed to take action.
The court’s conservatives seemed sympathetic to the struggles that city leaders are having with sprawling homeless camps in their parks and sidewalks, and suggested that local governments, not federal courts, are best equipped to manage the problem. “Why do you think these nine people are the best people to judge and weigh these policy judgments?” Chief Justice John Roberts said at one point.
Justice Neil Gorsuch asked if people who are homeless should have a right to have fires and to cook food publicly, or if they should be allowed to relieve themselves in public if there are no public restroom facilities available. Roberts asked if homeless residents in Grants Pass should be allowed to sleep in public if there is a homeless shelter with vacant beds in a neighboring city.
Ed Kneedler, a lawyer for the Department of Justice, which has sought a middle position in the case, argued that sending them to another community is akin to “banishment.”
“Banishment is a strange word when you’re talking about the next town over,” Roberts said.
“Making them leave their community is banishment,” replied Kneedler, who argued in favor of less restrictive regulations around when and where outdoor sleeping should be allowed.
At the end of the hearing, Evangelis argued that “cities are being forced to give up all of their public spaces” because of the Ninth Circuit rulings. She said the Grants Pass ordinance only provides for low-level fines and short jail sentences for repeat offenders.
“This is not unusual, and certainly not cruel,” she said. “Lots of cities have these policies.”
In the 2022 Grants Pass case, the Ninth Circuit ruled 2–1 that the small, lower-income city can’t enforce anti-camping ordinances “against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there is no other place in the City to go.”
That case came on the heels of a 2018 ruling in Martin v. Boise, in which the Ninth Circuit held that enforcing criminal anti-camping restrictions on people who don’t have access to temporary shelter violates the Eighth Amendment.
Critics of those rulings say they have supercharged the proliferation of homeless camps in Western states. Grants Pass petitioned the Supreme Court in August, arguing that the Ninth Circuit’s ruling conflicts with rulings by the California Supreme Court and the Eleventh Circuit.
Dozens of amicus briefs, representing the perspective of hundreds of groups and people —including big-city leaders, politicians, civic groups, business organizations, downtown residents, law-enforcement leaders, state attorneys general, and conservative think-tankers — were filed last year urging the Supreme Court to overturn the Ninth Circuit ruling.