The Patriot Post® · Supreme Court Weighs Vagrancy
Is sleeping in public anytime and anywhere a constitutional right? That’s the question the U.S. Supreme Court is considering in the case of Johnson v. Grants Pass. Put another way: Does homelessness convey special rights to sleep and live in public areas?
The case in question stems from the small city in Oregon called Grants Pass, as officials there sought to deal with homeless encampments by passing a citywide ban against sleeping in public.
Homeless advocates objected, claiming that the law was targeting people who were involuntarily homeless. The Ninth Circuit Court of Appeals ruled against Grants Pass by effectively finding a right to homelessness within the Eighth Amendment, which forbids cruel and unusual punishment.
With homelessness increasingly plaguing American cities, especially in places like Los Angeles and San Francisco, city and state leaders have struggled to address the problem. But the Ninth Circuit’s decision only exacerbated the problem, so the Supreme Court must bring legal clarity.
The justices heard three different arguments: one in defense of homelessness and opposed to laws banning them from public areas; another arguing on behalf of local authorities and the general public’s right to establish laws against vagrancy; and the third from the Biden administration, which sought to chart out some type of middle ground.
Based upon the questioning, it appears that the justices have split along ideological lines, with the three left-wing justices seeming to side with homeless advocacy and the conservative justices favoring local authorities’ right to establish bans on homelessness.
The left-wingers — Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson — expressed concerns over the “biological necessity” of people needing to sleep, with Kagan arguing that “sleeping in public is kind of like breathing in public” for homeless people. Sotomayor was critical of public ordinances against vagrancy that “give them no public place to sit down with a blanket or lay down with a blanket and fall asleep.” She crassly questioned: “Where are they supposed to sleep? Are they supposed to kill themselves [by] not sleeping?”
As leftists usually do, they insist that behavior is an identity. “Homelessness is a status,” insisted Kagan matter-of-factly. “It’s a status of not having a home.”
Meanwhile, from the conservative side of the bench, Justice Neil Gorsuch asked about the limit or expansion of these so-called homeless rights. He wondered whether granting the homeless a right to sleep in public also means they have a right to have fires, to cook, or to defecate in public.
Maybe the most pertinent point was raised by Chief Justice John Roberts, who challenged the left-wingers’ notion that homelessness was an identity status because it is situational. “What is the analytic approach to deciding whether something’s a status or a situation of conduct?” he asked. “You can remove the homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you’re kicked out of the shelter, whatever.” Roberts observed that homelessness is no more a status than bank robbery is, as both are conduct-dependent.
Given the direction of questioning, it appears that the Supreme Court will reject the Ninth Circuit’s dubious creation of a constitutional right to homelessness. The problem is multifaceted and ultimately not fixable by government fiat. However, the role the government plays is to create and enforce laws that benefit the wider society and encourage greater individual responsibility. The law only works insofar as the majority of people abide by it and the authorities enforce it.
Homelessness has gotten out of hand because of misplaced compassion, which avoids the deeper issue of personal responsibility and instead faults society writ large. Unless people are held accountable, the problem will grow out of control, as it has in Democrat-controlled cities like Los Angeles and San Francisco.