What the Supreme Court Doesn’t Get About Homelessness

The Supreme Court has just ripped away one of the rare shreds of legal protections available to homeless people. In a 6–3 ruling, the Court has decided that the city of Grants Pass, Oregon, did not violate the Eighth Amendment by enforcing camping bans against its involuntarily unsheltered residents. The ruling epitomizes why housing has become a crisis in so much of the country: It does nothing to make communities confront their role in causing a housing shortage, and it upholds their ability to inflict pain upon that shortage’s victims.  

This ruling overturned the Ninth Circuit Court of Appeals precedents Grants Pass v. Johnson and Martin v. Boise, which had restrained jurisdictions in much of the western United States, including the high-homelessness states of California, Oregon, and Washington, from enforcing anti-camping laws if they lacked shelter beds. Writing for the majority in the Grants Pass case, Justice Neil Gorsuch struck a Tocquevillian note, asserting that the American people, “through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals,” know better than some judges the best way to address homelessness in their cities and towns. And if part of their answer is to jail homeless people, so be it.

[Listen: A Supreme Court ruling on homelessness that’s both crucial and useless]

Modern tent encampments were not a significant part of the urban landscape before the 1980s. In fact, not since the Great Depression, when unemployment hit nearly 25 percent, have so many people sought makeshift shelter in outdoor camps. Today, unemployment is at 4 percent. And yet, in prosperous American cities, homelessness abounds. It’s not because drugs were invented in the past several decades, nor is it because mental illness was invented by Millennials.

Rather, it’s because local governments have sought to rid their housing markets of low-income people by getting rid of low-income-housing options, while ensuring that the rest of the market would become prohibitively expensive. Localities simply displaced the most vulnerable residents to the outdoors, hoping that life would be so uncomfortable that these people would migrate to some other community. And now, after policy choices have created a nationwide housing crisis, cities have successfully petitioned the Supreme Court to allow them to ignore a problem of their own making. If they’re not willing to allow more housing, they certainly are willing to house the indigent in jail.

Grants Pass has about 40,000 people and a median family income of $54,000, which is 30 percent below the state average. The one homeless shelter there, run by a Christian nonprofit, can house 138 people. It requires that its residents abstain from alcohol and drugs (including nicotine), attend twice-daily chapel services, and “abstain from intimate relationships.” It also requires residents to separate from their partner or spouse to maintain gender segregation. For many people, this is a difficult way to live. Everybody agrees that there aren’t enough shelter beds for the number of homeless people. Where they disagree is what should be done about it.

Tent encampments are a symptom of a dysfunctional housing market for low-income renters. Yet over the decades, cities have not only barred housing of last resort from being built; they’ve also squeezed development of housing targeted at even middle- and high-income renters. People’s options have thus been whittled down to nothing when a medical emergency hits, or a divorce happens, or a family dispute leads to someone being kicked out—resulting in large numbers of people living outside.

As tent encampments have proliferated around the country, communities have routinely treated the problem of homelessness as a matter of maintaining order rather than of reducing the number of people without shelter. This isn’t irrational; many local residents experience these encampments as hotbeds of disorder. Not only do many encampments take up public parks and settings that are available for general use, but they also accumulate trash and other signs of chaos.

Still, fining and jailing people for being poor is fundamentally unjust; if you’re homeless, that on its own should not be treated as a criminal offense. And as a practical matter, people cannot be fined or jailed out of homelessness. When cities turn to punitive measures without offering options more suitable than camping outside, they’re at best simply moving homeless people around in an endless dystopian game. At worst, they’re imposing fines and other legal costs on people already defined by their lack of resources, and increasing the likelihood that they remain transient and unhoused.

Writing for the three dissenting liberal justices, Sonia Sotomayor zeroed in on a core problem: Does criminalization even work? “For people with nowhere else to go, fines and jail time do not deter behavior, reduce homelessness, or increase public safety … Police officers in these cities recognize as much: ‘Look we’re not really solving anybody’s problem. This is a big game of whack-a-mole.’” The ruling will empower cities and states to pursue criminalization without addressing the root causes of homelessness. But to what end?

[From the January/February 2023 issue: The obvious answer to homelessness]

In 2023, the National Park Service cleared about 74 people out of D.C.’s McPherson Square. City officials admitted later that, as The Washington Post put it, “roughly two-thirds of those who had been displaced from the park were believed still to be sleeping on the street.” The newspaper reported that, soon after the sweep, just two people had been placed in permanent housing.

Elected officials want an easy way out of this catastrophe, and when your only tool is a police officer, everyone looks like a prisoner. Mayors and governors are searching desperately for a quick fix to this problem and are frustrated that even valiant efforts to increase the supply of affordable housing is unlikely to earn them many points from the electorate. Such attempts to address homelessness are unlikely to be politically persuasive if they don’t result in the removal of tent encampments. This frustration was perhaps best put by Los Angeles Mayor Karen Bass: Angelenos “want the tents to go.” She continued, “I could build half a million units of housing, and if there are still tents, people will not believe that you did anything except to steal their money.” But there is no quick fix, and mayors such as Bass have done little to seriously push back against the entrenched political interests that oppose new housing.

Yes, clearing encampments has to happen sometime. But only when cities have invested in the shelter capacity and housing space needed to serve these populations will enforcement have any meaningful effect on addressing homelessness—and the disorder it brings.