(Bloomberg Opinion) -- In a defeat for advocates of the unhoused, the US Supreme Court has rejected the argument that it is cruel and unusual punishment to outlaw sleeping outdoors in urban spaces. The 6-3 decision broke down along ideological lines, with the conservatives refusing to apply the Eighth Amendment to prohibit cities from trying to keep homeless people from sleeping in the streets, and the liberals in dissent arguing that “sleep is a biological necessity, not a crime” and that outlawing it unconstitutionally criminalizes the status of being homeless.
The outcome is a reminder that if progressives ask this Supreme Court to create new rights for marginalized people, the effort is going to be more symbolic than practical. The current conservative majority is in the business of rolling back constitutional rights, not making new ones.
The arguments in the case felt like a throwback to the 1960s, when the Warren court, at the height of liberal judicial activism, was in the habit of interpreting the Constitution creatively to expand individual liberties. One of those decisions, Robinson v. California, from 1962, made new law under the Eighth Amendment by holding that it was cruel and unusual punishment for California to enact a law that made it a crime to be addicted “to the use of narcotics.” In an opinion by Justice Potter Stewart, the court held that being an addict was a status, not an act, and that it should count as cruel and unusual punishment for the government to outlaw a state of being.
In the homelessness case, Grants Pass v. Johnson, the US Court of Appeals for the Ninth Circuit took a page out of the Warren court’s handbook. Like many municipalities, the town of Grants Pass, Oregon, has ordinances that criminalize camping or parking overnight on public property. The plaintiffs in the case brought a lawsuit against the town seeking to block it from enforcing its laws against unhoused people. (With 38,000 residents and some 600 unhoused people, it would be fair to say the town has a homelessness problem.)
The plaintiffs’ theory, adopted by the Ninth Circuit, was that being unhoused is a status, much like addiction was in the Robinson case. Thus, they reasoned, it would be cruel and unusual to punish a person for sleeping in public when they have nowhere else to sleep.
Morally, it’s easy to see why this argument is powerful. As Justice Sonia Sotomayor pointed out in her impassioned and compassionate dissent, the laws don’t really apply to backpackers or to someone who happened to fall asleep while reading a newspaper in the park on a sunny day. They are used against people for whom “sleeping outside is their only option.” And for such people, the law effectively criminalizes their biological, human need to sleep — and thus their status as people with no homes.
The trouble with this argument, constitutionally speaking, is that the Eighth Amendment’s prohibition on cruel and unusual punishment has been classically understood to focus on the means of punishing criminals, not the substantive conduct that is criminalized by the law. The 1962 Robinson case is an outlier, as Justice Neil Gorsuch pointed out in his majority opinion.
Gorsuch also explained that the due process clause of the Fourteenth Amendment is the more natural place to look for the limits of what may be made criminal. Most crimes, he argued, require proof that someone has engaged in an act with some requisite will. And he pointed to a 1968 decision in which even the great liberal lion, Justice Thurgood Marshall, declined to extend the logic of the Robinson case to overturn a law that criminalized public drunkenness, because Marshall didn’t think being drunk in public was a status crime even though the defendant was an alcoholic. If Marshall wouldn’t extend Eighth Amendment protection to public drunkenness, Gorsuch argued, it shouldn’t be extended to homelessness.
Gorsuch’s majority opinion didn’t call for the overruling of the Robinson precedent, as Justice Clarence Thomas unsurprisingly did in a separate concurrence. It just refused to extend the status/conduct distinction to the situation of homelessness. That’s to be expected, given that the conservative majority doesn’t like to create new rights — unless they are for gun owners under the Second Amendment.
That in turn raises the question of why the plaintiffs brought the case, knowing as they must’ve done that the justices were not going to create new constitutional protections for homeless people.
One answer is that they did win in the Ninth Circuit — and the Supreme Court could in theory have allowed the Ninth Circuit’s opinion to stay in place by not reviewing it. More likely, the answer is that advocates for the unhoused wanted to draw attention to the horrific scale and consequences of homelessness.
Morally, the advocates are right: It really is cruel to address a social crisis by using criminal law to punish society’s most vulnerable people. Advances, however, are going to have to come from legislation and creative social policy, not from this Supreme Court.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People.'
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