Johnson v. Grants Pass at Oral Argument in the Supreme Court

By Andrew Chen, Homeless Prevention
Staff Attorney CCWRO

Recently the Supreme Court heard oral argument in Johnson v. Grants Pass, the case that has dominated this space and hung over the heads of unhoused persons and their advocates for months. The question: can government criminalize sleeping outside when homeless folks have nowhere else to go? The Ninth Circuit, since Martin v. Boise in 2018, has said *no*, and expanded that ruling in Johnson. The city of Grants Pass appealed, and the case came before the full Court at oral argument.

While arguments were not nearly as lopsided as one might expect from the 6-3 conservative majority, the conservative Justice’s nevertheless expressed a lot of skepticism about the lower court’s holding. In particular, they showed concern about where to draw the line between “status” and “conduct”. If sleeping outside is protected conduct because it is an invariable proxy for the status of homelessness, then what other behavior does that include? Perhaps not surprisingly, the Court’s conservatives focused on things like starting a fire, or stealing food, etc. While the representative from the Solicitor General’s office had difficulty explaining the line, Kelsi B. Corkran, counsel for the respondents, had quick, detailed answers ready: the other examples are distinguishable, she said, because they imply underlying criminal conduct. Sleeping in public, she said, was only criminalized for homeless individuals, as evidenced by the legislative and enforcement history. Homeless people were singled out, while other, housed, people napping on a bench or in their car temporarily were not subject to the ordinance.

Conservative justices, especially J. Alito, also ex- pressed concern with the permanence of protected status. Addiction, he pointed out, under a modern medical understanding, is not considered a tempo- rary condition, while homelessness can be tempo- rary. This line of questioning seemed to imply some kind of administrability or vagueness argument against the 9th Circuit’s judgment. Again, Corkran had an excellent answer ready to go: not only did the Court’s precedent in Robinson v. California, which prohibited the government from creating and enforcing laws criminalizing drug addiction, not consider the temporality of protected status (as medical science hadn’t reached modern understanding in 1962), but other protected statuses, such as someone’s being a cancer patient, are also temporary but no less protected. Justices Sotomayor, Kagan, and especially Jackson did their best to keep the discussion on track and redirect the narrative away from these line-drawing hypotheticals and back to the core of the issue: that the Supreme Court’s precedent applies squarely in this case also, and the law allows for reasonable time, place, and manner restrictions on public behavior without allowing laws prohibiting *existing as a homeless person* in public.

Surprisingly, the full Court expressed broad skepticism of the City’s arguments in favor of its laws, including Justice Kavanaugh, who questioned the practicality of the City’s law and whether it was, in fact, an appropriate public safety intervention. The three liberal justices, meanwhile, noted that criminalizing universal attributes of homelessness (sleeping in public) was akin to making breathing illegal.

Justice Jackson further noted that given that the Oregon legislature recently passed a law codifying Martin v. Boise into state law, the whole case should be mooted. That outcome would be the cleanest, if not the most rhetorically satisfying, way for the Court to avoid adjudicating the 8th Amendment question. Additionally, several conservative justices indicated they thought a necessity defense, raised in criminal court, should be the driving force nullifying the prosecution of homeless people under this law While it’s still unlikely that the full Court will choose to uphold the 9th Circuit’s ruling and protect the rights of homeless individuals, this oral argument was much better than many advocates, myself included, expected. If nothing else, we should expect a fierce dissent from the Court’s liberals that a more just Court, in a more enlightened time, can apply in the years to come.