City of Grants Pass v. Johnson

~ Allyson

The very last words in Justice Sotomayor’s dissent read: “I remain hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us. Because the Court today abdicates that role, I respectfully dissent.”

Background

Grants Pass, Oregon is a small city on the west coast. Close to 40,000 people live there. In this small community, there is just one homeless shelter and it’s run by a religious organization, so it comes with restrictions: unhoused individuals who stay there can’t smoke and they have to attend religious services. On top of that, there are just 138 beds available for over 600 reportedly unhoused people in Grants Pass. This is noteworthy because the majority spends a significant amount of time insinuating that most of the time people refuse to stay in homeless shelters because they’d rather do drugs, get drunk, or other nefarious things. Writing for the majority, Justice Gorsuch spends a ridiculous amount of time on this snide commentary: it can obviously have nothing to do with needing to be absent during the day, 40-hour work week demands, or the inability to keep medical equipment in the room, as was the case for one person who couldn’t keep her nebulizer in her room, despite needing to use it every six hours.

The case was at the Supreme Court because a couple of years ago the City of Grants Pass passed several ordinances that targeted all the conditions of being unsheltered and homeless (i.e. needing to camp, creating a temporary place to live), but stopped just short of naming it. The ordinances made it very easy for unhoused people to be jailed in very quick succession. First, the ordinances prohibited sleeping in public parks for more than 2 hours, which can be fined starting at $295 and increasing to $537. Second, people cited for violating the park rules twice in one year can be barred from the park for days. Anyone found violating that order could be jailed for 30 days and fined up to $1,250.

The Grants Pass ordinances were challenged in a class action lawsuit arguing that they violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Eighth Amendment reads: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Majority Opinion

Here’s the TLDR version of Justice Gorsuch’s majority opinion: he reasons that because the ordinances don’t explicitly target unhoused people- despite describing salient parts of being unhoused, such as needing to sleep in public places, as prohibited- the ordinances aren’t overly punitive or cruel and unusual (under his logic, the only way the ordinances would have been found to violate the Eighth Amendment would have been if they said: “Lock up the homeless menace”). The justice reaches this conclusion by stating that the Cruel and Unusual Punishment clause of the Eighth Amendment applies to the method of punishment and not whether governments can punishment so…. nothing to see here!

The majority justifies its conclusions with assertions meant to be taken as fact. According to Justice Gorsuch, the ordinance scheme isn’t cruel because it isn’t meant to sow “terror, pain, or disgrace,” and it’s not unusual because this is how offenses are usually dealt with. In other words, it’s not scary to go to jail and everyone locks up unhoused people, so it must be ok. The majority also states several times that the inability to jail unhoused people for being unhoused severely limits municipalities’ ability to address the homelessness crisis. Apparently we are meant to understand that cities are so lacking in imagination that warehousing people is the only solution they are prepared to enact to combat our national homelessness crisis.

Through it all, the justice makes sure to note the horrors of the homelessness crisis for the rest of us. He writes in many places about how homeless encampments are vectors for drug and alcohol abuse, disease, and crime. The lack of empathy from a sitting justice who is expected to have empathy for all people in the United States is both shocking and disturbing. He writes about unhoused people as if they are garbage for real people to have to endure on their way to their jobs, homes, and schools.

The outcome is that the Supreme Court greenlights fining and jailing unhoused people for being homeless in public.

Dissent

In contrast to the majority opinion, Justice Sotomayor’s dissent is a compassionate, reasoned rebuttal to the majority’s conclusory victim-blaming. The dissent points out the numerous options that were still open to cities to address unwanted behaviors that didn’t involve incarcerating individuals for sleeping in public parks. These included, but were not limited to being able to punish: littering, public urination, possession and/or distribution of illegal substances, etc. (advocates and allies would also point out these are still problematic when the root of the issue is often a complex combination of systemic injustice and inadequate public safety net resources). Justice Sotomayor also discusses the nature of the nationwide homelessness crisis and how individuals end up without housing and how jailing individuals for being unhoused is unlikely to change the circumstances that make it necessary to sleep outside. She is able to do all of this with compassion for the people experiencing homelessness (shockingly).

The dissent also points out the spurious logic used to reach the majority’s holding. Of the majority’s analysis on criminalizing actions, not status, Justice Sotomayor writes: “the majority’s analysis consists of a few sentences repeating its conclusion again and again in hopes that it will become true.”

Finally, the dissent points out that, despite the majority’s attempt to present the Grants Pass ordinances as unbiased laws that could apply to anyone just passing through on a summer camping trip, they have, in fact, only been enforced against actually unhoused people.

Takeaway

This case will likely have (and probably already has had) two main impacts: emboldening cities with an authoritarian streak and scaring both unhoused and unsheltered people and the people who support them. As a case in point: I was listening to a podcast that featured, in part, the mayor of Grants Pass. She stated that it was a relief to have the case over because now they could do something about the unhoused population- as if the city was completely forestalled by the previous ruling. In fact, as the dissent pointed out, the city could do almost anything except jail people for being homeless. The theme of municipal powerlessness when unable to be overtly punitive to unwanted populations is likely to catch on.

The Grants Pass decision betrays the Court’s abdication of its role as an arbiter of justice for all Americans. Rather than taking into account the numerous factors that explain homelessness or the reasons why a person might be unhoused in Grants Pass (the math isn’t mathing= 138 beds for 600+ people), the Court decides to spin a legal fiction that isn’t even facially convincing.

Not to put too fine of a point on it, but this term of the Court has made it clear that this emboldened Supreme Court isn’t tethered to either logic or compassion. This case reminds me of Jim Crow Era vagrancy laws, where people were punished for standing around. These laws were selectively used to intimidate, harass, and incarcerate Black people, particularly Black men and boys.

This is also likely not the last of the cases that we will see in the next few years that will continue not just to strip away our freedoms, but to work deliberately toward a white supremacist-Christian national nation.

References and Additional Resources

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