The Supreme Court's homelessness decision and what comes next

Yesterday the Supreme Court issued its consequential decision in the Grants Pass v. Johnson case. This is a story I’ve been following for the last two years, and had the opportunity to sit in for oral arguments in April. There was some speculation among legal experts that based on the questions posed by the justices the Supreme Court may actually decide the case was “improvidently granted” which means they made a mistake in taking it up. In other words, some guessed the Supreme Court might actually punt the case back to Oregon, avoiding making any big constitutional determinations at all. But in the end, they didn’t do that, it was a 6-3 decision with the conservative justices on one side, and the three liberal justices on the other. The Court ruled that it does not violate the 8th Amendment’s prohibition on cruel and unusual punishment to enforce anti-camping homeless bans, even if a city lacks available shelter for the homeless person to go to. This means they could fine, arrest, or jail someone for sleeping outside in violation of a city’s camping ban, even if their homeless shelters were full and they had no vacant affordable housing.

I spent the last few weeks trying to understand where things go after the Court’s ruling, since though the decision yesterday will make it easier for cities to clear out homeless tent encampments, it doesn’t require them to do so. Especially in liberal cities, politicians will likely face pressure from all sides, to enforce the bans more aggressively, and to leave those sleeping outside alone. Across the country we can expect continued political fights over what to do about the growing homeless population in the US, and tent encampments in particular.

You can read my new story here, and I think it helps answer the question of what comes next. I report on conservative think tanks and legal groups thinking about how do we make it mandatory and non-discretionary for cities to clear out homeless tent encampments. They’re looking at things like “public nuisance” lawsuits to compel enforcement, ballot measures that require cities to compensate business owners who claim financial damages from nearby tent encampments, and state-level bills that empower state attorneys general as well as residents and business-owners to sue local governments if they feel anti-camping bans are not being sufficiently enforced.

Still, not all these strategies necessarily have juice. My piece explores some of the practical and legal challenges that come with trying to use the courts to force cities to do something.

On the other side, organizations that advocate for the well-being and rights of homeless people have been charting their legal and political strategy for a post-Grants Pass world, too. Yesterday the Supreme Court effectively overturned Grants Pass and its 2018 predecessor Martin v. Boise, and advocates are now hoping to pass new legislation that could effectively codify the 2018 Martin v. Boise decision into state and federal law. (Martin said it was illegal to punish homeless people for sleeping outside if there was no adequate shelter for them to go to.) Homelessness advocates are looking at the playbook of abortion rights advocates post-Roe.

Homelessness advocates are also hoping to use this moment to steer the political conversation to solutions that can actually solve homelessness, solutions like more affordable housing, repairs to public housing, eviction prevention, and expanded rental subsidies. They have a Housing not Handcuffs national campaign, and as I’ve written before, just because criminalization could be easier in a post-Grants Pass world, doesn’t mean that it’s inevitable. What regular citizens like us choose to say or do will make a difference in how cities respond. So will budgetary considerations.

From a story I wrote in April:

Another restraint on local government could come from members of the public. Individuals could decide to push back and speak out against policies they find cruel or ineffective and help lobby for more humane alternatives. Vox has previously reported on additional measures individuals can take to help their unhoused neighbors.

To help homeless individuals, leaders will need not only to address the housing supply crisis but also increase supports like rental assistance to keep more people from falling into homelessness. Many mayors feel they lack the funding to really move the needle on the homelessness crisis, and many of the entities that receive federal funding to provide homelessness support lack jurisdiction to actually help craft local policy.

Some cities have been thinking about soliciting community feedback in ways that drive more humane outcomes for homeless individuals. For example, in contrast to the citizen “complaint portals” many cities have established, which often incentivize more policing-centric strategies, some cities, like Los Angeles, are experimenting instead with “help portals” to invite public feedback more rooted in the well-being of the person experiencing homelessness.

To ensure communities can help homeless individuals, governments and nonprofits will need to invest in better research on the experiences of unsheltered people and push for more transparency on policing practices.

The current lack of good research makes it harder to design good policy or even to protest bad policy. “What happens to people who are unsheltered when their local government passes a camping ban?” Levine Einstein asked. “We don’t have that kind of data systematically.”

Thanks for reading, and if you have any further questions about this case, or thoughts on future homelessness-related stories, please let me know any time.