The Supreme Court heard oral argument Monday in the case of City of Grants Pass v. Johnson, which raises the issue of how states and localities may deal with the problem of homelessness.

The U.S. Court of Appeals for the 9th Circuit held that it violates the cruel and unusual punishment clause of the Constitution’s Eighth Amendment for a city (in this case, Grants Pass, Oregon) to fine someone for sleeping on public property if no bed is available at a secular shelter.

After Monday’s argument, it seems likely that the Supreme Court will reverse the lower court’s decision.

In its ruling, the San Francisco-based 9th Circuit relied on two Supreme Court decisions: Robinson v. California, which held that a state can’t criminalize the status of being a narcotics addict, and Powell v. Texas, which held that a state may outlaw being drunk in public.

The 9th Circuit read those decisions as prohibiting the government from making it a crime to engage in involuntary conduct and concluded that succumbing to sleep is about as involuntary an act as anyone can undertake.

Homelessness is a serious national problem. Sometimes it is caused by a transient economic misfortune that is not the fault of the displaced individual, such as losing a job because an employer’s business closed. On other occasions, homelessness results from the inability to hold a job because of poor life choices, such as abusing controlled substances.

In each instance, a party might be forced out of his home because he no longer can pay his rent or mortgage, but the nature of the reason is quite different. Moreover, there is a material difference between one or two isolated homeless parties and an entire encampment of homeless individuals.

Both scenarios pose risks to third parties, but the latter is far worse. The difference is like the difference between a sprinkle of rain and a monsoon.

How to address homelessness arouses passion on each side. Advocates for the homeless argue that the government has a legal and moral obligation to ensure that everyone has a decent place to live, which means that the state must allow the homeless to sleep on public property if no other space is available.

Citizens argue that they, too, are entitled to a decent place to live, and the government must be able to protect the quality of life they enjoy in urban, suburban, or rural neighborhoods against the drug use, crime, and squalor surrounding homeless encampments.

Local governments are caught in the middle. They must prioritize how to spend limited funds while trying to satisfy the competing needs of local constituencies.

Unfortunately, the 9th Circuit short-circuited the legislative process by making up—yes, we meant exactly that; the court willfully made it up—a constitutional right for the homeless to sleep in a public park if no public or private nonsectarian beds are available.

That quite astonishing ruling attracted the attention of the Supreme Court, which agreed to hear the case.

Dozens of parties filed amicus briefs in the Grants Pass case on one side or the other. Three parties argued in the Supreme Court.

Theana Evangelis, a partner in the Los Angeles office of Gibson, Dunn & Crutcher LLP, argued on behalf of the city of Grants Pass, contending that the 9th Circuit misread the Eighth Amendment.

Deputy U.S. Solicitor General Edwin Kneedler, a seasoned veteran of the Justice Department’s Office of the Solicitor General, argued on behalf of the United States. Kelsi Brown Corkran, who oversees Supreme Court litigation at the Institute for Constitutional Advocacy and Protection, argued on behalf of the plaintiff class of homeless people.

Oral argument lasted for two and a half hours, so the justices and lawyers covered a great deal of ground.

Evangelis argued that the 9th Circuit had “constitutionalized” the responses of local governments that were trying to deal with a thorny public policy issue, adding that the appeals court had “tied the city’s hand.” She seemed afraid to follow this argument to its logical conclusion, however. 

Evangelis could have responded “Yes” to hypothetical questions such as: “Could the city make it a crime to be homeless, even if all that someone did was to stand at a bus stop?” Or “Could the city make it a crime to eat in public, because someone could not afford to eat in a restaurant?”

After all, the Eighth Amendment was adopted when there were only 13 states bundled along the Eastern Seaboard. At the time, there was a vast unknown amount of westward space for someone to try to make a living off the land. No one imagined that the government had the responsibility to provide shelter for anyone.

While Evangelis’ arguments could have been stronger, especially in the face of tough questions from the Supreme Court’s three liberal justices, several of the other six justices appeared to be on her side.

Justice Brett Kavanaugh, for instance, expressed a desire to “avoid the need for having to constitutionalize an area and have a federal judge superintend this rather than the local community.” 

And Chief Justice John Roberts rightfully noted that “municipalities have competing priorities,” wondering: “Why would you think that these nine people [himself and the other eight justices] are the best people to judge and weigh those policy judgments?”

Kneedler tried to refocus the justices’ attention by claiming that Grants Pass effectively sought to banish people from its jurisdiction but arguing that cities such as Grants Pass should have some flexibility in implementing reasonable restrictions on time, place, and manner to address homelessness.

Several justices, most notably Justice Neil Gorsuch, appeared skeptical. They expressed concern that if the high court were to adopt Kneedler’s position, local governments couldn’t effectively address the problems of dealing with mentally ill persons or drug addicts, particularly those who refuse to enter shelters, or for that matter the problem of public defecation.

At the end of the day, Kneedler likely did not change many minds.

Appearing last, Corkran argued that the Grants Pass ordinance is indistinguishable from one that makes it a crime to be homeless, because everyone must fall asleep eventually and a homeless person can’t do so in Grants Pass without being cited for violating the law. The result, she said, is that Grants Pass imposes a “24/7 citywide sleeping ban that forces its homeless residents to either move to another jurisdiction or face endless punishment.”

Corkran and Roberts batted around answers to the question of whether “homelessness” is a “status” because it can be changed by giving someone a place to sleep. She said that it was, but Roberts expressed the view that being a homeless person was no more a “status” than being a bank robber because conduct is involved.

Corkran doggedly adhered to her basic position and avoided being caught in logic traps. Nonetheless, she also probably did not win any votes from justices that she didn’t already have.

At the end of the day, a clear majority of the nine Supreme Court justices seemed unwilling to embrace the 9th Circuit’s broad ruling that the Eighth Amendment effectively requires localities to find a place for the homeless to stay.

The high court will have to work out exactly what its opinion will say, and what its rationale will be, during the time remaining in the term that began in October 2023.