The Supreme Court will soon take up Grants Pass v. Johnson, one of the highest-profile cases this term. Grants Pass is an Oregon city whose laws aimed at restricting street homelessness were struck down by the San Francisco-based Ninth Circuit Court of Appeals.
Many expect the Supreme Court to reverse Grants Pass and with it, the previous Ninth Circuit decision on which it is based, Boise v. Martin. In doing so, the court will authorize cities to clear the dangerous encampments now plaguing so much of urban America.
That the highest court in the land has had to get involved in homelessness, often seen as a local issue, is a measure of how bad street conditions have become throughout the West Coast. Public camping has contributed to soaring fatal overdose statistics, fires threatening core infrastructure, and infectious disease outbreaks. California’s social struggles are various. But nothing has contributed to the state’s dystopian vibes quite like its inability to stop tents from proliferating everywhere.
The Ninth Circuit decided Boise, which concerned restrictions on public camping similar to those at issue in Grants Pass, back in 2018. Its core finding was that Boise, Idaho could not enforce a blanket ban on public camping unless it had first made shelter beds available to its entire unsheltered population. Otherwise, the argument went, anti-encampment ordinances violated the Eighth Amendment’s ban on “cruel and unusual punishments.”
The traditional function of the Eighth Amendment has been to ensure that severe methods of punishment, such a the medieval torture known as “breaking someone on the wheel,” have no place in American criminal justice practices.
It seems like a stretch to apply it, with equal force, to issuing someone a citation for public camping.
But if Boise’s reasoning was dubious, the effect was straightforward: less enforcement and more street homelessness. Since 2018, when Boise was handed down, every one of the nine states within the Ninth Circuit’s jurisdiction has seen its unsheltered population grow.
Collectively, the increase was 38%, even though those same states increased their bed supply by 39%.
Fair enough, passing an anti-encampment ordinance may not “end homelessness,” but that is not the goal. Grants Pass concerns the privatization of public spaces. When someone has made a sidewalk, park or plaza into his own private living space, it is no longer meaningfully “public.”
In 2019, the Supreme Court declined to take up an appeal for Boise; the current, more conservative court, took up Grants Pass.
In the charged political environment of this election year, we can expect some to see Grants Pass framed as a case of Trump-appointed judges saving blue America from itself. Perhaps we’ll hear that from Trump himself.
But that framing won’t fit because Democratic politicians didn’t ask for this. Multiple prominent Democrats petitioned the Supreme Court to review Grants Pass, including California Gov. Gavin Newsom, San Francisco mayor London Breed, and Portland mayor Ted Wheeler.
A world without Boise would strip judges of their authority to decide questions beyond their competence, such as when shelter is truly available to someone, and return the power to regulate public space back to the political process, where it belongs.
Local officials, who insist they’re listening to public complaints about street conditions, and do nothing, could no longer hide behind the courts.
Voters in Portland, Seattle and San Francisco would be free to turn out any officials whose homelessness policies they find unacceptably harsh or ineffective.
This is not about “criminalizing homelessness,” as progressive activists would have it. Anyone who runs afoul of an encampment ordinance does so by virtue of his behavior (what he did), not his status (who he is).
As for arguments based on how dismantling encampments lacks compassion, ever-mounting counts of homeless death totals bear out the truly cruel and unusual nature of the Boise regime.
Undoing Boise would mean preventing the types of overdose and stabbing deaths among vulnerable populations that have too often become white noise in urban America.
Homeless encampment law is a clear case of progressive judges pushing themselves out way in advance of not only public opinion but the Democratic party.
The Ninth Circuit’s vanguard gambit failed. It’s now left to the Supreme Court to realign law with democracy and sound policy.
Stephen Eide is a senior fellow at the Manhattan Institute, a contributing editor of City Journal, and the author of “Homelessness in America.”
