For almost six years, the Ninth Circuit Court of Appeals has conducted an experiment in homeless policy. Circuit judges have used a singular reading of the Constitution to overturn local laws against street sleeping and camping. The results were disastrous and led to more homelessness and chaos in the Western states under the Ninth Circuit’s jurisdiction. On Friday, Justice Neil Gorsuch, with five other Supreme Court justices, put an end to that experiment.

Gorsuch’s strong but reasoned opinion returns homeless policy to states and local governments, where it belongs. It also offers a chance for these governments to act against the growing problem of street encampments.

In 2018, a panel of Ninth Circuit judges decided the case of Martin v. Boise, ruling that the Constitution’s Eighth Amendment clause against “cruel and unusual punishments” prevented cities from enforcing laws against street sleeping or camping, if homeless people didn’t have sufficient alternatives.

Any hopes that the Boise case would have helped the homeless were quickly dashed. Homelessness in the Ninth Circuit states increased by over 25 percent by 2022, while in the rest of the country it decreased. Nonetheless, in that year the Ninth Circuit extended its decision in Boise, ruling in the Johnson v. Grants Pass case that even civil fines against some types of camping and sleeping were unconstitutional.

Gorsuch’s opinion overturning the Grants Pass ruling lays waste to the Ninth Circuit’s arguments. First, he shows that the claim that the Eighth Amendment prevents camping laws is absurd on its face. The Eighth Amendment is about preventing types of punishments, such as beatings, not about banning whole categories of laws proscribing certain behaviors. The punishments authorized by the city of Grants Pass, Oregon, such as civil fines and a ban on camping in public parks, were both restrained and common.  

Gorsuch’s opinion also points out a fact many activists like to deny: homeless encampments are dangerous and violent. Rulings that prevent the clearing of those camps can lead to more violence. Gorsuch notes that by one estimate, over 40 percent of the shootings in Seattle are linked to homeless encampments, despite the homeless being a small fraction of the city’s overall population. As others have pointed out, the main victims of these acts of violence are other homeless people. About 25 percent of Los Angeles’s murder victims are homeless, for example, though they make up about 1 percent of the population.

It’s difficult to see how the Ninth Circuit’s rulings have helped the situation for the homeless on the West Coast. Today, California alone contains almost half of the nation’s unsheltered homeless. Seattle’s King County saw a new record of homeless deaths last year, 415—an increase of more than a third from the previous year’s total, which was also a record. Los Angeles sees about 2,000 homeless people die a year, a figure up almost 300 percent since 2014 and which even local officials believe is an undercount.

Despite valiant efforts by the Left to portray the attacks on the Ninth Circuit as a right-wing effort, the court’s rulings on the homeless united a broad spectrum of opponents. The National League of Cities, representing more than 19,000 American municipalities, and individual cities from San Francisco to Colorado Springs asked the Supreme Court to review the Grants Pass ruling. Justice Gorsuch included a footnote in his opinion, taking up most of a page, that listed all the people and organizations that petitioned the court to review the case¸ including everyone from California governor Gavin Newsom to the International Municipal Lawyers Association.

The homeless advocates’ argument rested on the idea that homelessness was an involuntary status and that local governments couldn’t punish people simply for their status or for activities that flowed from that, such as sleeping. But the activists’ position brought up some uncomfortable questions. During the oral argument, Justice Gorsuch wondered whether, if sleeping in public was necessary for the homeless, might cooking in public be, too? Justice Amy Coney Barrett pointed out that defecating was also necessary. Should cities be forced to allow public defecation? And how would cities prove that homelessness was “involuntary”? As the opinion notes, most residents of homeless encampments refuse shelter beds even when they are offered. 

Local governance is a formidable challenge that involves weighing diverse preferences and enforcing rules across the vast panoply of human behavior. While the Grants Pass ruling does not guarantee that Western states and cities will handle homelessness well, it at least gives them a chance. They will certainly do better than distant judges who could not begin to comprehend the difficulties of dealing with growing encampments filled with human suffering.

Photo: Melina Mara/The Washington Post via Getty Images


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