A Supreme Court Ruling on Homelessness That’s Both Crucial and Useless

Later this summer, the Supreme Court will rule on City of Grants Pass v. Johnson, one of the most important cases on homelessness to come up in a long time. The court will decide whether someone can be fined, jailed, or ticketed for sleeping or camping in a public space when they’re homeless and have nowhere else to go. In oral arguments, the justices engaged in a lively debate about the central legal issues: Are states criminalizing people for the act of sleeping outside or for their status of being homeless? Does arresting an unhoused person for sleeping outside constitute cruel and unusual punishment? Should federal justices even be addressing this issue, or is it more appropriate to leave up to local officials? One thing this landmark decision will not really address—the actual problem of homelessness.

In this episode of Radio Atlantic, we talk to Atlantic writer and Good on Paper host Jerusalem Demsas about City of Grants Pass v. Johnson and what it may or may not solve. Homelessness has exploded since the 1980s, mostly in cities where housing costs have gone up. Criminalizing—or not criminalizing—people sleeping in public does not change the fact that many people have nowhere to sleep, and that people who do have places to sleep can’t help but notice that their cities have a huge homelessness problem.

Listen to the conversation here:

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The following is a transcript of the episode:

Hanna Rosin: Here is a basic American idea: If something is illegal, it has to be equally illegal for everyone.

So, sleeping: Can you arrest someone for sleeping in a public space? Meaning—could city officials agree to arrest people who fall asleep in public, as long as they say the law applies to everyone, equally, in the spirit of fairness?

That’s one important thing that the Supreme Court is trying to figure out this summer.

[U.S. Supreme Court oral argument, City of Grants Pass v. Johnson]

Sonya Sotomayor: And the police officers testified that that means that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while. You only arrest people who don’t have a second home. Is that correct?

Theane Evangelis: Well—

Sotomayor: Who don’t have a home?

Evangelis: So, no. These laws are generally applicable. They apply to everyone.

Sotomayor: Yeah, that’s what you want to say.

[Music]

Rosin: This is Radio Atlantic. I’m Hanna Rosin. And today, we are talking about one of the most important cases for the rights of the unhoused in a long time.

[U.S. Supreme Court oral argument, City of Grants Pass v. Johnson]

John Roberts: We’ll hear arguments first this morning in Case 23-175, City of Grants Pass v. Johnson. Ms. Evangelis?

Evangelis: Mr. Chief Justice, and may it please the court. Like cities nationwide, Grants Pass—

Rosin: In Grants Pass v. Johnson, the Supreme Court will rule later this summer on whether someone can be fined, jailed, or ticketed for sleeping or camping in a public space when they’re homeless.

Are they being punished because they are sleeping—the action? Or are they being punished because they’re homeless? And should cities be free to make these decisions for themselves?

[U.S. Supreme Court oral argument, City of Grants Pass v. Johnson]

John Roberts: Municipalities have competing priorities. I mean, what if there are lead pipes in the water? Do you build the homeless shelter, or do you take care of the lead pipes? What if there aren’t—isn’t enough fire protection? Which one do you prioritize? Why would you think that these nine people are the best people to judge and weigh those policy judgments?

Rosin: So in a way, Grants Pass shines a big, bright spotlight on the real issue, which is that many city governments have made a series of decisions about housing over the last few decades that have resulted in a growing number of people who have nowhere to sleep.

Jerusalem Demsas: We’ve put a lot of power into the hands of local governments to decide who can and can’t be somewhere, and what kinds of people can and can exist in different places.

Rosin: This is Atlantic writer Jerusalem Demsas. She thinks a lot about what’s behind our policy dilemmas—housing is one of her obsessions. She also hosts The Atlantic’s new policy podcast, Good on Paper.

Demsas: And so this kind of exclusion functions in so many different invisible ways. There are all these invisible jurisdictional lines that are affecting behavior, like what school was allowed to be built where 20 years ago. And thus, when your parents were looking for a place to live near a school, they generally were attracted to a certain set of neighborhoods. We think of these as free choices, but they’re actually the choices that are handed down to us by government policy from decades ago.

Rosin: And when it comes to housing, these series of choices have created impossible situations. City governments have an interest in keeping the order. Local citizens need somewhere to sleep. These competing interests have been battling it out in a string of important court cases, like Martin v. Boise.

Demsas: In that case, six homeless people sued Boise, Idaho, because of an anti-camping ordinance. And they claimed that their constitutional rights were being violated because they were being told that they couldn’t sleep in public, but there was nowhere for them to sleep. There were not housing shelters or things at capacity available for them. And so they said this is a violation of their civil rights, and the Ninth Circuit agreed with them.

And since then, the Ninth Circuit, of course, it covers a handful of states but really big ones that are at concern here, like California, for instance, which has the largest homeless population in the country. But, of course, other courts also pay attention and cite Martin v. Boise, as well. So this has become important to the whole country, even though this was just the Ninth Circuit case. So this has come before the Supreme Court before, and they have declined to listen to it.

But this time, in Grants Pass v. Johnson, they had oral argument. And what’s at stake here is basically what kinds of things constitute cruel and unusual punishment. And already there’s leeway given to local governments to have reasonable time restrictions and place restrictions on public land for where people can camp. But if the Supreme Court overturns Martin v. Boise and rules against the homeless individuals at play here, then basically what could happen is you could see a whole new raft of criminalization policies, of encampment sweeps without any concern for whether or not those people can actually go somewhere to sleep at night.

Rosin: Okay, so on one side, on the unhoused side, it’s really clear what the interests are there. They’re very basic. They’re like, I have no place to go, and there isn’t capacity in any shelter, and you are criminalizing just a basic life function of mine. What is the city’s interest? What’s Grants Pass or any of these cities—what’s at stake on their side of things?

Demsas: Yeah. So Grants Pass, Oregon, is—I think people outside of Oregon think of it as a liberal state, but this is a pretty conservative county. The city of Grants Pass is a county seat. You have some liberal homeowners, but you also have a lot of clear conservatives, things like that. Oregon’s a very idiosyncratic place, so just setting that context.

The entirety of the push towards criminalization begins because, in around 2013, they have this roundtable where they’re trying to discuss how to get rid of vagrants or the problem of vagrancy. And so they begin really heavily ticketing, penalizing, fining people to get them out. And the problem, of course, in Grants Pass is there’s basically one real shelter in Grants Pass, and it’s what local journalists have referred to as a high-barrier shelter.

Rosin: Mm-hmm.

Demsas: And what that means is that they have requirements on someone to come in. You have requirements about attending daily Christian services. They have requirements around not using nicotine. They have requirements around not using any substances. They have prohibitions around interacting with the opposite sex. They have prohibitions around trans people or identifying as the opposite gender or wearing clothes that identify as the opposite gender.

So there’s tons of restrictions. And that’s a place where homeless research has been really clear: that if you make it really, really hard for people, it obviously raises the stakes for them. And if you’re an individual who doesn’t think that you’re forever homeless—you think that you’re just trying to figure it out right then, which is most people who are homeless (they don’t expect to be homeless for decades)—then it’s like, Oh, I’m not going to just stop speaking to my wife or my girlfriend. I’m not going to just separate from my dog. I’m not going to cold turkey nicotine, which is a very hard thing to do, you know? So it’s a lot of things that make it really difficult in Grants Pass.

Rosin: Okay. Just to stick with the city’s position for a minute, it sounds like from what you’re describing it, it’s somewhere between aesthetic and safety?

Demsas: I think it’s public order. There’s real concerns about the parks themselves—they’re public parks. It’s not just for homeless folks. It’s for everyone who’s in Oregon or anyone who wants to come to Oregon. They’re public parks. You know, so I think there are legitimate concerns about public order and safety that are on the city’s part.

Rosin: Right, right. Okay. And then the other thing that comes into this case is the Eighth Amendment, which was surprising to me. That’s the prohibition against cruel and unusual punishment. I, personally, have never thought of it as being used in this particular way. I think of it as having to do with sentencing or presentencing. Why that? Why does that come up in all the cases?

Demsas: So there’s decades-old precedent that established that it was cruel and unusual to punish someone because of their status. Basically, you can punish behavior—there’s something that you do—but if it’s something that you are, you can’t just punish that existence. And so homeless folks in the Martin v. Boise ruling—and in that case—they were trying to prove that homelessness itself was a status that you couldn’t just criminalize. And so what was happening is that you have to criminalize specific behavior. And so what’s interesting is in the oral arguments we heard, you have—

Rosin: In the Grants Pass case.

Demsas: In the Grants Pass case, yes. You have these questions around, Well, are you criminalizing everyone who’s sleeping? Because if you’re not, then you’re criminalizing someone’s status. And the respondents from Grants Pass really struggled with this question.

[U.S. Supreme Court oral argument, City of Grants Pass v. Johnson]

Evangelis: It’s very important that it applies to everyone.

Elena Kagan: Yeah, I got that. But it’s a single person with a blanket. You don’t have to have a tent. You don’t have to have a camp. It’s a single person with a blanket.

Evangelis: And sleeping in conduct is considered—excuse me, sleeping in public is considered conduct. This court, in Clark, discussed that—that that is conduct. Also, the federal regulations—

Kagan: Well, sleeping is a biological necessity. It’s sort of like breathing. I mean, you could say breathing is conduct, too, but presumably you would not think that it’s okay to criminalize breathing in public.

Evangelis: I would like to point to the federal regulations—

Kagan: And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.

Evangelis: Well, two points. Even for the federal regulations …

Demsas: So for the cruel-and-unusual part, sleeping is sort of like a necessity. It’s not just a thing where you can just make yourself not sleep, you know?

Rosin: Right. Okay, so the core issue for each side is, on the homeless side—forgetting about the policy for a minute—the core issue is: Are you essentially criminalizing a state of being? And then for the city, it’s the city’s right to decide how it wants to create public order and police in the city.

Demsas: And to be clear, it’s not just that the folks on Grants Pass—or on the side of the homeless advocates, in this sense—are saying the city should not be able to move people out of public spaces. They’re saying, You have to provide them an alternative. If you’re going to say, You can’t be here, and then they go, Where should we go?, you have to have an answer to that question.

But, you know, to bolster a little bit of the case on the side of the city, I think it’s important to also note that, for instance, you could be starving to death, and it’s still illegal to steal, right? It’s illegal to steal bread or something like that. I mean, we’ve all seen Les Mis. So that’s not allowed. But at the same time, the distinction that’s being made here is: You don’t criminalize starvation; you criminalize the stealing of bread, versus, Are you just criminalizing homelessness in this case, or are you criminalizing sleeping in this place at a specific time. Are you providing reasonable restrictions?

Rosin: Yeah. This does sound a lot like a lot of other dilemmas that cities are facing now—a lot of other dilemmas around social services versus public order. That seems to be a central conundrum that liberal, urban places don’t quite know how to solve right now.

Demsas: And not just liberal. I mean, Grants Pass is not a liberal place. I think this is a problem that has existed for a while.

And I think that, in some ways, it’s a real tension. And sometimes there’s a tension between, you know, How do you provide for order while allowing people to be free and do what they want to do? And, in some ways, it’s not a real tension. Like with the homelessness—I think that’s why I’m so interested in it. And I’m just like, There’s actually a solution to the crisis. You could just provide housing that is sufficient for the people who need it, and then you would not have homelessness.

But, you know, I think people forget—because we’re so in it now—but mass encampments were not normal for most of American history. The modern encampments and modern tent homelessness began in the 1980s. And so, to me, it’s just like, Yes, of course. Now there is this tension. But it’s come after decades of terrible policy.

[Music]

Rosin: After the break—we get into that policy. And also: What happens if the Supreme Court case rules in favor of the city?

[Break]

Rosin: Okay. What has happened over the last few decades, both in numbers of homelessness, demographics—what’s been the changing picture? Do you want to start in the ’80s? Is that the right place to start?

Demsas: Homelessness has skyrocketed since the ’80s. Half a million people, roughly, are homeless on a given night when they do the point-in-time count to figure out how many people are homeless in America.

Rosin: What is the point-in-time count?

Demsas: Yeah. It’s a very difficult thing: How do you figure out how many homeless people there are? It’s not like you can just do a simple survey to figure that out.

Rosin: Right. And nobody’s like, Checking on the census: I’m homeless now.

Demsas: Yeah, exactly. So what they do is by the end of January, basically, every single continuum of care, which is just the jurisdiction that they reference—sometimes it’s counties, sometimes it’s cities, whatever. So every single jurisdiction has to count up their homeless. And by that, I mean—literally—they need to go around and count people up. There’s a lot of problems with it, but that’s kind of the count we have.

So homelessness has been really on the rise, and it’s really tracked alongside the rising unaffordability of housing, and that has been really the core cause of rising homelessness.

Rosin: So is it evenly distributed? Is it mostly West Coast? Over the last—since the ’80s—what else has changed besides just total numbers?

Demsas: Yes. You see it concentrated in places where you see high housing costs. So you see it concentrated in places like Los Angeles, like New York, like Boston, like D.C., like San Francisco, like Seattle—these are the places where you see homeless encampments on the rise.

And I think there’s also distinctions in the types of homelessness. So in places like New York, it famously has a right to shelter. And the East Coast, because of the blisteringly cold temperatures, there’s a lot more incentive—both humanitarian and just because, I mean, you don’t want a bunch of people dying in your city—to provide a lot more shelter capacity. And the East Coast tends to have a lot more shelters, and so it’s often less visible than on the West Coast, where there’s less of that concern that people are going to die outside. And so the visibility of the homelessness is much larger in places like Los Angeles, for instance.

Rosin: Yeah. I was just in Seattle, and I had forgotten about the particular nature of West Coast homelessness. I mean, Seattle, Portland—there are places where there are just huge populations downtown—

Demsas: Yep.

Rosin: Especially at this time of year. And it’s just an accepted part of the city infrastructure. That’s true in East Coast cities, too, but in a different way and a little more recently and a little more season dependent. So yeah, I was reminded of that.

Now is it that obvious and well accepted that rising housing costs and homelessness have moved in tandem? Is that a universally accepted principle?

Demsas: I don’t think there’s anything universally accepted anymore.

Rosin: (Laughs.)

Demsas: But yeah, as universally accepted as you can get, yes.

I think that this is something that requires taking a step back to talk about what we mean by something causing something else. So people are saying things like, Oh, so-and-so is homeless because they were addicted to drugs, and then they lost their job, and then they couldn’t make their rent, and now they’re living on the street. They’re not wrong if that story happened, right? So there are individual vulnerabilities that make someone more likely to become homeless.

But when you reduce the supply of affordable housing to the extent that we have, we have guaranteed basically that someone will be homeless. Who becomes homeless is a question of vulnerability, right? People who are less well off, people who have mental-health issues, people who are addicted to drugs, people who are more likely to lose their jobs or who are volatile in some way—so they’re going to get into arguments with their family members or with roommates, so they’re going to end up on the street—that’s all true. Those things are a part of the story of how they become homeless.

But all of those things happened before 1980, and yet we didn’t see those people become homeless. They still had mental-health issues. There were still drug-addiction issues. There were still epidemics of different kinds of drugs. And yet people were experiencing those things, and they were housed. And why that is: because there was just a lot more availability of really, really cheap housing stock.

You can have high poverty, even, like Detroit, Philadelphia—these are places with high poverty. They do not experience the level of homelessness that you see in places like Boston or D.C. or San Francisco. So I think that that’s trying to figure out causally from a policymaker’s standpoint: What could I do as a policy maker to reduce the level of homelessness? You could have low poverty. San Francisco: very low-poverty place. You can’t reduce it by that much more, and yet you still see high rates of homelessness. And so, to me, the lever that policymakers really need to focus on is increase in supply of affordable housing as much as possible.

Rosin: Right. So for you, there are two things that are obvious: One is that the causes of homelessness are a particular interaction between personal qualities and structural realities in a city. And the second is: If you do look at the interaction of those two things, what you end up with is lack of affordable housing.

Demsas: Yeah.

Rosin: Okay. Let’s wind back around to our central question. So, we have this Grants Pass case, which is the city versus the rights of the homeless people. From the logic that we’ve talked about—Debra Blake, who’s the original complainant, saying she has no place to go—from the way you’ve described things, she’s probably right. Like, she’s probably correct. That would be a common problem. And yet, from all accounts of Supreme Court oral arguments, they seem to be tipping towards Grants Pass’s side, right? Is that right?

Demsas: Yeah. External observers think that, on net, it’s likely that they—I mean, it’s also possible that they choose not to; they resolve on a question that is completely kind of below. Often, the Supreme Court will just resolve on this lowest-available question that doesn’t require them to actually engage with some of these bigger issues. And so they could do that and kick it back down.

And even right now, cities are clearing encampments, too. So whether the policy reality looks very, very different is really unclear if the Supreme Court doesn’t rule. But, yeah, I mean, the Supreme Court does not look favorable for the homeless plaintiffs.

Rosin: Okay, so let’s say the Supreme Court does rule in favor of Grants Pass’s desire to be able to maintain jurisdiction and control over the homeless population. How do you read that decision? Is that just avoidance of the bigger problem? Does it cause its own set of problems? Where does that leave us?

Demsas: I think that we’ve danced around this a lot in this conversation, but there’s almost two different policy issues at play here. There is: Do we want to see fewer people homeless? And then there is: Do we want our communities to feel better? Because for everyone, it just feels bad to see people living in that way. That’s just really striking. It makes people not want to go towards those areas. You see decreased engagement with the businesses.

And so, to me, it keeps the conversation in this place of: The problem is order. And the reason I dislike that is because you actually can’t solve it in that space. If you keep it focused on order, you just end up moving homeless people around. Maybe you move them to jail. Maybe you move them to another city. Maybe you are able to incentivize more of them to live in cars and be better at evading, if they’re able to get there. And some people might count that as a win if you just end up not having to see these encampments everywhere. But to me, that’s a lot, a lot, a lot of public money spent on not solving a problem.

Rosin: So you’ve neither solved the homelessness problem, nor have you solved the problem you wanted to solve and narrowly focus on, which is the order problem.

Demsas: Yes. Because, to me, it’s the idea that—I mean, California’s governor, even, has submitted an amicus brief in favor of Grants Pass in this case. And he’s someone who, you know—it’s a liberal state where they focus on this issue.

I mean, there are a bunch of liberal city leaders who have also said they want more power in order to clear encampments. These are places that have devoted tons of money and energy and time to solving the problem. And I want to be very clear here that most of the people who are even, I think, counterproductive in solving the homelessness problem are devoting tons of energy and time and money towards a variety of different types of solutions.

And, to me, it’s not that they don’t care about this. But I think if the Supreme Court decides it’s just going to keep us again in this spiral of talking about and dealing with this problem as a function of encampments, as a function of order, as a function of policing and of people putting people in jail, I just worry that we end up stuck there, and we don’t actually try to solve the problem of disorder.

Rosin: Right. So if the Supreme Court does, as expected, side with Grants Pass, either nothing changes or you get more license to criminalize, in which case nothing changes. Is there a universe where the emptiness of that decision leads to something positive?

Demsas: I think a lot of states have started to realize the futility of their own housing policy and of allowing local governments to continue on in the way they have for the past few decades. You see energy, most recently, in Colorado, in Montana, in California, and a lot of places around the country—in Texas. And these are places where people have said, Okay. The housing crisis has gotten so bad. We cannot continue the status quo. We’re going to make it much easier to build all types of housing. And that has happened adjacent with the rise in homelessness. It has happened adjacent with the run-up in home prices and rent unaffordability. And that has really spurred action.

I think people were really shocked to see, in 2020, that this crisis—which a lot of people had thought, All right, well, that’s just because of those crazy Californians and those New Yorkers and those Bostonians. That’s them. That’s their problem. It’s not our problem—it moved. It spread to the rest of the country. As the housing unaffordability crisis spread, so, too, did the homelessness crisis, and that really spurred policymakers to take action.

And so I have some serious concerns about what’s going to happen in the future, but I do see some shining lights of optimism in that state governments have taken on an extremely difficult political issue and been able to find some level of solutions here. Now, the track record of places staying on course on a policy path when you don’t see results immediately is not the greatest. You know, I’m always cautious. You’re trying to get me to end on a positive note. And I’m just like, You know, I don’t know!

Rosin: No, no, no. You know what I’m trying to do? I’m trying to build up anticipation. So Jerusalem, on your show—and congratulations—we can just listen for constant updates, since this is such a central issue. So I’m just setting you up for figuring this out for us and all its complications over the next few years.

Demsas: Okay, well, you just brought up my new show, Hanna. It’s called Good on Paper.

Rosin: Such a good name.

Demsas: Thank you. So Good on Paper is a policy show, and it’s one where we are investigating ideas that fly in the face of some existing narrative. Maybe it’s a broad one held by a lot of people in the U.S. Maybe it’s a narrative held by an academic community. But it wants to take seriously the ideas that seem in the face of what we already generally believe.

We’ve kind of already done an episode here on your show now that’s like this—you know, the idea that homelessness is not really about drugs, not really about mental health; it’s about housing. That is, in some ways, a narrative violation. It’s also a lot about academic papers, so it’s about good-on-paper ideas and also papers that are good on—That’s a good paper! (Laughs.)

Rosin: Yeah. That’s something I love. It’s so delightful to come upon academics who have cut through the ways that everybody else has done it and just figured out how to factor in some very either obvious or complicated things. It’s so delightful to come upon a good, clear paper, you know?

Demsas: Yeah. Well, thanks for having me on your show. I can’t wait to have you on mine.

Rosin: Yes. I would love to. It was really fun.

Demsas: Yes, yes. Thank you so much. I’m really excited.

[Music]

Rosin: Jerusalem’s show, Good on Paper, is out now, with new episodes every Tuesday. I hardly know anyone who sees the world as clearly as Jerusalem does. She sees through and behind and under all of these policy decisions. And if you listen to Good on Paper, you’ll develop that superpower, too.

This episode of Radio Atlantic was produced by Jinae West. It was edited by Claudine Ebeid, fact-checked by Yvonne Kim, and engineered by Rob Smierciak. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.

I’m Hanna Rosin. Thank you for listening.