The Supreme Court just made it easier for governments to remove unhoused people from public spaces

The case comes out of Grants Pass, Oregon, where local officials were prevented from clearing a homeless encampment by Ninth Circuit Court of Appeals rulings in Martin v. Boise and Johnson v. Grants Pass requiring local governments to have sufficient shelter beds available before forcing unhoused people off the streets.

The appeals court — which controls nine western states, including California — decided in both cases that barring people from sleeping in public spaces without providing alternative shelter violates the Eighth Amendment’s protections against cruel and unusual punishment.

The Supreme Court’s conservative majority disagreed. Gorsuch argued that policy responses to homelessness should be left up to policymakers and voters, writing that “a handful of federal judges” cannot “begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.”

In her dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, called criminalizing unhoused people for sleeping outdoors “unconscionable and unconstitutional.” They argued that not having a place to call home is a state of being, rather than a choice.

“Sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option,” wrote Sotomayor, who read her dissent from the bench. “The City of Grants Pass jails and fines those people for sleeping anywhere in public at any time, including in their cars, if they use as little as a blanket to keep warm or a rolled-up shirt as a pillow. For people with no access to shelter, that punishes them for being homeless.”

State and federal court cases on the legality of clearing homeless encampments reflect a debate between some governments who say they need more authority to protect public safety and address homelessness and advocates who argue authorities are exacerbating the problem by criminalizing homelessness.

While conservatives have led the charge in pushing to overturn the Ninth Circuit’s decision, some prominent Democratic leaders, including California Gov. Gavin Newsom, also pushed to overturn the 9th Circuit ruling. California — which is home to 12% of the US population — has struggled to deal with rapidly rising homelessness and is now home to 30% of people experiencing homelessness and half of the unsheltered population in the US.

In an amicus brief filed with the Supreme Court, Newsom argued that the 9th Circuit ruling forces local elected officials “to abandon efforts to make the spaces occupied by unhoused people safer for those within and near them.”

An increasing number of cities and states across the country have passed laws — often anti-camping ordinances — similar to that in Grants Pass. In Florida, Gov. Ron DeSantis signed legislation in March that bans people from camping in public places. Critics say the state isn’t providing enough funding for services, including shelters and addiction treatment.

Critics say criminalizing homelessness doesn’t address its root causes — and actually makes the problem worse.

“If you are living outside and are impoverished, a ticket or a fee is probably something you can’t afford, and then you have unpaid tickets, which impacts your credit rating, which makes it harder to find a place to live,” Jesse Rabinowitz, communications director at the National Homelessness Law Center, previously told Business Insider. “Or you get arrested and then you have a criminal record, which both makes it harder to get a job and harder to get an apartment.”

There are several proven pathways to alleviating homelessness, including, most importantly, building more housing. Researchers say other key policy solutions include removing barriers to shelter construction and tenants’ rights, creating crisis response systems that don’t involve the police, strengthening housing and employment opportunities for formerly incarcerated people, and increasing government support of public spaces.