Common Sense and Public Order Are Restored to America’s Cities

The Ninth Circuit’s utopian jurisprudential experiment of ignoring human agency predictably ended in disaster.

This essay originally appeared in The American Conservative on July 2, 2024 (here). Thanks to Real Clear Policy (here) and Ace of Spades HQ (here)!

On June 28, the Supreme Court corrected the inexplicable mistake it made in 2019, when it declined to grant certiorari (discretionary review) to overturn the atrocious decision by the U.S. Court of Appeals for the Ninth Circuit in Martin v. Boise, a case I wrote about two years ago in TAC (“Lawyers Cause Homelessness,” May/June 2022). In Martin v. Boise, the Ninth Circuit struck down—in the entire western United States—all laws and ordinances forbidding “camping” in public areas on the grounds that punishing vagrants for sleeping in parks, on sidewalks, under overpasses, etc. amounted to “cruel and unusual punishment” in violation of the Eighth Amendment because homelessness is ostensibly a status, not conduct. Unless cities provide adequate shelter beds for all vagrants seeking free lodging, the Ninth Circuit opined, bums, drunks, addicts, and the mentally ill have “no choice” except to sleep outdoors.

Martin v. Boise provoked a tsunami of homeless encampments that overwhelmed—and despoiled–many urban areas. By preventing the enforcement of no-camping ordinances, the Ninth Circuit’s ruling contributed enormously to an explosion of the homeless population in cities from Seattle to Phoenix. Martin v. Boise was an absurd decision with sweeping—and disastrous—consequences for the 1,600 municipalities within the Ninth Circuit’s mammoth jurisdiction, which were rendered powerless to curb urban homeless encampments. Not coincidentally, the five states with the highest rates of unsheltered homeless were subject to the abomination of Martin v. Boise. It was, without exaggeration, one of the most destructive decisions issued in the past decade—one that I had ridiculed as “facially ridiculous.” Red city mayors throughout the nation, and even progressive California Governor Gavin Newsom, begged the Court to reverse Martin v. Boise.

Justice Neil Gorsuch

Fortunately, in an excellent 6-to-3 opinion written by Justice Neil Gorsuch, in another case from the Ninth Circuit, Grants Pass v. Johnson, the Supreme Court last week reversed Martin v. Boise. There is no constitutional right to vagrancy, and sleeping outside is not an “involuntary” act immune from criminal prosecution, the Court held. The Eighth Amendment proscribes only the  form of punishment, not the types of conduct that are subject to criminal sanction. Cities and states are free to manage homeless encampments and the accompanying crime, drug abuse, and public health consequences, as they see fit. The jurisprudential nightmare unleashed by the Ninth Circuit is over. Grants Pass v. Johnson, overshadowed by blockbuster decisions issued the same day overruling Chevron and invalidating J6 prosecutions under Sarbanes-Oxley, is a gem.

The majority opinion in Grants Pass patiently debunked the Ninth Circuit’s flawed reasoning, concluding that “The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy.” Federal judges do not manage America’s cities; state and local elected officials do.

At the heart of Justice Gorsuch’s opinion, and the majority’s disagreement with the  three liberal Justices (Sotomayor, joined by Kagan and Jackson) was the difference between two Warren Court era precedents, Robinson v. California (1962) and Powell v. Texas (1968).  Robinson, a hoary relic of the Court’s period of extravagant activism, held that a California law making it a crime to be a drug addict violated the Eighth Amendment because drug addiction—as opposed to drug use, or possession–is a status, not a volitional act. The majority pointed out that “in the 62 years since Robinson, …this Court [has not] once invoked it as authority to decline the enforcement of any criminal law, leaving the Eighth Amendment instead to perform its traditional function of addressing the punishments that follow a criminal conviction.” Yet, in Martin v. Boise, the Ninth Circuit risibly relied on (and extended) Robinson to invent its novel “constitutional right to vagrancy.”

This was an error, the majority in Grants Pass concluded. Without reconsidering or overruling Robinson, the majority made it clear that the 1962 precedent was an anomaly to be narrowly limited to its unique facts. (Justice Thomas, who joined the majority in Grants Pass, wrote separately to condemn Robinson on originalist grounds, arguing that it was “wrongly decided.”)  The majority contrasted Robinson with another—more sensible—artifact of the Warren Court’s criminal law revolution, Powell v. Texas.  In Powell, the Court had declined to extend Robinson more broadly, holding that that a Texas law prohibiting public drunkenness criminalized conduct, not status. Accordingly, the law did not run afoul of the Eighth Amendment.

The amazing feature of this doctrinal tutorial is that the author of the Court’s plurality opinion in Powell was Justice Thurgood Marshall, the liberal champion of civil rights who, as an advocate, argued the landmark case Brown v. Board of Education (1954).  Marshall scoffed at the notion that public drunkenness could be regarded as a status: the defendant had not been convicted “for being” an “alcoholic, but for [engaging in the act of] being in public while drunk on a particular occasion,” Marshall insisted. Thus, Robinson did not apply.  Accordingly, Marshall concluded, the Eighth Amendment does nothing to curtail a state’s authority to secure a conviction when “the accused has committed some act . . . society has an interest in preventing.”    

The majority in Grants Pass rightly held that “This case is no different from Powell.” Banning sleeping in public is no different than banning public drunkenness. Both crimes entail volitional conduct, not status. Despite this simple and irrefutable logic, the three left-wing dissenters in Grants Pass wrote 30 pages of overheated nonsense defending the Ninth Circuit’s execrable decision in Martin v. Boise.

Justice Sotomayor’s paean to judicial activism begins with this drivel: “Sleep is a biological necessity, not a crime.” This is how divided the Court is in 2024. The three remaining Democrat appointees comprise a bloc of hard-left ideological zealots willing to embrace far-fetched theories that even Thurgood Marshall slapped down as silly during the heyday of “living Constitution” judicial activism during the 1960s. We thought that the Warren Court era was over, and it should be, but it lives on in the fervid rants of unhinged—and, thankfully, meaningless–dissenting opinions (albeit just two votes away from regaining control of the Court). Sotomayor and her colleagues are to the left of Gov. Gavin Newsom, who praised the Court’s decision!

The conservative majority in Grants Pass provided a master class in originalist constitutional interpretation, restoring the ability of America’s cities to govern themselves. This is a victory for democracy, federalism, and common sense, and a major defeat for the National Homelessness Law Center, which spearheads litigation seeking to create a right to taxpayer-funded housing. Bravo!      

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