Gavin Newsom No Longer Has an Excuse for Tent Cities
In City of Grants Pass v. Johnson, the Supreme Court reverses a Ninth Circuit decision that barred laws against public camping.
By Stephen Eide
June 28, 2024 5:23 pm ET
As tent cities filled with homeless people proliferated in West Coast communities in recent years, elected Democrats dealt with the problem by passing the buck. California Gov. Gavin Newsom argued that his hands—and those of other state and local officials—were tied by a Ninth U.S. Circuit Court of Appeals ruling that prohibitions on homeless encampments amounted to “cruel and unusual punishment.” In City of Grants Pass v. Johnson, the Supreme Court has taken that excuse away.
In 2018, the judges of the Ninth Circuit essentially OK’d the idea of pitching a tent on a sidewalk or in a park. The ordinances at issue in that case levied fines for public camping. Repeated noncompliance could lead to being banned from local parks and jailed for short periods. The ordinances applied, Justice Neil Gorsuch made clear in his Grants Pass majority opinion, with equal force to homeless people, backpackers and student protesters. They wouldn’t strike most Americans as cruel.
In generations past, courts invoked the Eighth Amendment’s prohibition on cruel and unusual punishment as indicating the framers’ commitment to what Chief Justice Earl Warren described in 1958 as “the evolving standards of decency that mark the progress of a maturing society.” It’s therefore rich that the same constitutional provision has been used to force communities to accommodate street homelessness and related harms such as retail theft, sidewalks strewn with human waste, sexual violence and overdose deaths.
Martin v. Boise, the 2018 Ninth Circuit ruling, had three practical and immediate consequences. First, it ushered in an almost 40% increase in street homelessness throughout the nine states under the Ninth Circuit’s jurisdiction. Second, it precipitated a collapse in demand for beds in local homeless shelters. Finally, it gave Democratic politicians like Mr. Newsom an easy way to satisfy progressive demands for lax law enforcement.
After years of struggle, U.S. cities in the 1990s managed to reduce crime and make their downtowns livable again. This was achieved by a relentless focus on public order. Encampment culture in recent years has offset most of those gains. While officially in agreement that encampments are bad, the Ninth Circuit contended that laws penalizing homelessness lead to more homelessness. People who are camping on the streets live precariously. For some, the Ninth Circuit declared, even the modest penalties under review in Grants Pass could make the difference between sleeping rough and upward mobility.
The Ninth Circuit ruled that if a city provided “practically available” shelter for its homeless, it could enforce its ordinances against camping. But how much spending is enough? Is a shelter program truly “available” if it disallows pets and partners? Do beds in church shelter programs count toward measures of availability? Oversight of such details has now been stripped from judges, who never should have had it in the first place.
Most Americans have at one time or another looked at what’s going on in San Francisco and wondered why homelessness is so much worse there than in their own hometowns. The reason is simple. Your hometown has reasonable rules governing the use of public places, which it enforces. Homeless advocates have inadvertently proved this point by issuing reports, which Justice Gorsuch cites, that encampment restrictions are far from “unusual.” They are standard practice in municipal law.
Justice Gorsuch was impressed by the “exceptionally large number of cities and States” that filed briefs demanding relief from the Ninth Circuit’s overbearing jurisprudence. He also emphasized that his ruling left cities free not to pass antiencampment ordinances if they don’t want to.
By shifting more power from federal courts to state and local politicians, Grants Pass is a win for democracy and federalism. It’s also a win for judicial pragmatism, a value celebrated in a recent book by former Justice Stephen Breyer. Justice Breyer’s argument took aim at the originalist-oriented conservative bloc. In Grants Pass, all six conservative justices signed on to the majority opinion. No justice from the liberal bloc saw anything amiss in the Ninth Circuit’s grant of a constitutional right to vagrancy.
The high court’s ruling in Grants Pass will restore a measure of normality to a policy area overridden by cruelty and dysfunction. The homelessness crisis has contributed to plummeting levels of trust in government. In Western states, public surveys often cite homelessness as the No. 1 issue of community concern. It will be up to voters to keep the pressure on state and local officials, and success is by no means assured. But Grants Pass is a sound first step.
Mr. Eide is a senior fellow at the Manhattan Institute and the author of “Homelessness in America.”
