The Supreme Court on Friday corrected the inexplicable error it made in 2019, when it refused to grant certiorari (discretionary review) to overturn the atrocious decision of the United States Court of Appeals for the Ninth Circuit in Martin vWoodeda case I discussed a few years ago in The American Conservative (“Lawyers are the cause of homelessness,” May/June 2022). Martin vWoodedThe Ninth Circuit struck down—across the entire western United States—all laws and ordinances prohibiting “camping” in public places on the grounds that punishing vagrants who sleep in parks, on sidewalks, under bridges, etc. amounted to “cruel and unusual punishment” in violation of the Eighth Amendment, because homelessness is apparently a Statusno driving. Unless cities provide adequate shelter beds for all vagrants seeking free housing, the Ninth Circuit held, bums, drunks, drug addicts and the mentally ill have “no choice” but to sleep outside.
Martin vWooded This has led to a tsunami of homeless encampments that have overwhelmed and despoiled many urban areas. By preventing enforcement of ordinances banning camping, the Ninth Circuit’s decision has contributed enormously to an explosion of the homeless population in cities from Seattle to Phoenix. Martin vWooded It was an absurd decision with sweeping and disastrous consequences for the 1,600 municipalities under the Ninth Circuit’s mammoth jurisdiction, which were left powerless to curb urban homeless encampments. It is no coincidence that the five states with the highest rates of homeless people were subjected to the abomination of Martin vWooded. It was, without exaggeration, one of the most destructive decisions made in the last decade, a decision I derided as “ridiculous on its face.” Republican mayors across the country, and even California’s progressive governor, Gavin Newsom, begged the Court to annul the decision.
Fortunately, in an excellent 6-3 opinion written by Associate Justice Neil Gorsuch, in another Ninth Circuit case, Grant Passport v. JohnsonThe Supreme Court overturned last week Martin. There is no constitutional right to vagrancy, and sleeping outdoors is not an “involuntary” act immune from criminal prosecution, the court ruled. The Eighth Amendment only prohibits form of punishment, not the types of conduct that are subject to criminal penalties. Cities and states are free to manage homeless encampments and the resulting crime, drug abuse, and public health consequences as they see fit. The Ninth Circuit’s precedent-setting nightmare is over. Grant Passport v. Johnsonalthough overshadowed by successful decisions rendered the same day annulling Chevron and invalidating the J6 prosecutions under Sarbanes-Oxley, is a gem.
The majority opinion in Grant Passport The Chief Justice of the United States patiently debunked the Ninth Circuit’s flawed reasoning, concluding that “the Eighth Amendment to the Constitution serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and dictate for them this nation’s homelessness policy.” Federal judges do not run America’s cities; state and local elected officials do.
At the heart of 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 vCalifornia (1962) and Powell v. Texas (1968). Robinsonan old relic from the Court’s extravagant activism period, held that a California law making it a crime to be a drug addict violated the Eighth Amendment because the drug addiction-as opposed to drugs to useOr possession-is a status, not a voluntary act. The majority stressed that “in the 62 years since Robinson,…this Court [has not] once invoked it as authority to refuse the application of any criminal law, leaving the Eighth Amendment to fulfill its traditional function of dealing with the penalties that follow a criminal conviction. Martin v. BoiseThe Ninth Circuit has laughably relied on (and extended) Robinson to invent his new “constitutional right to vagrancy”.
It was a mistake, the majority in Grant Passport concluded. Without reconsidering or canceling Robinson, The majority made clear that the 1962 precedent was an anomaly that should be narrowly limited to its unique facts. (Associate Justice Clarence Thomas, who joined the majority in Grant Passportwrote separately to condemn Robinson on originalist grounds, arguing that the decision had been “poorly taken”.) The majority contrasted Robinson with another, more sensible artifact of the Warren Court’s criminal law revolution, Powell v. Texas. In PowellThe Court had refused to extend Robinson more broadly, by claiming that a Texas law prohibiting public drunkenness criminalized to driveand not the statute. Accordingly, the law was not contrary to the Eighth Amendment.
The astonishing feature of this doctrinal tutorial is that the author of the Court’s pluralist opinion in Powell was Justice Thurgood Marshall, the liberal civil rights advocate who, as a lawyer, argued the landmark case Brown vEducation Council (1954). Marshall scoffed at the idea that public drunkenness could be considered a status: the defendant had not been convicted “for being” an “alcoholic,” but for [engaging in the act of] “It is illegal to be in public intoxicated on any particular occasion,” Marshall insisted. Thus, Robinson Marshall concluded that the Eighth Amendment in no way limits a state’s authority to obtain a conviction when “the accused has committed an act…which society has an interest in preventing.”
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The majority in Grant Passport rightly considered that “this case is no different from Powell“Prohibiting sleeping in public is no different from prohibiting public drunkenness. Both crimes involve willful conduct, not status.” Despite this simple and irrefutable logic, the three left-wing dissidents of Grant Passport wrote 30 pages of overheated nonsense to defend the Ninth Circuit’s atrocious decision Martin v. Boise.
Justice Sotomayor’s eulogy for judicial activism begins with this baloney: “Sleep is a biological necessity, not a crime.” That’s how divided the Court is in 2024. The three remaining Democratic nominees are a bloc of far-left ideological zealots willing to embrace outlandish theories that even Thurgood Marshall dismissed as ridiculous at the height of “living Constitution” judicial activism in the 1960s. We thought the era of the Warren Court was over, and it should be, but it lives on in the fervent diatribes of raging—and, thankfully, meaningless—dissents (albeit just two votes away from regaining control of the Court). Sotomayor and her colleagues are to the left of Governor Gavin Newsom, who hailed the Court’s decision!
The conservative majority in Grant Passport delivered a master class on originalist constitutional interpretation, restoring the ability of American cities to govern themselves. It’s a victory for democracy, federalism, and common sense, and a major defeat for the National Homelessness Law Center, which is waging litigation to create a taxpayer-funded right to housing. Bravo!
