Grants Pass v. Johnson

hear arguments first this morning in case 23175, City of Grants Pass v.

Johnson.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, Peter, Rhiannon, and Michael are talking about Grants Pass, Oregon v.

Johnson.

This is a case from the court's most recent term that touches on the hot-button issue of homelessness and whether it should be legal.

It's really a simple question: Can you criminalize homelessness?

And you're suggesting yes, you could.

In a 6-3 decision, the conservatives on the court ruled that jailing people for not having a place to live does not represent cruel and unusual punishment.

And that the law in Grants Pass, Oregon, doesn't criminalize being homeless, it merely criminalizes living and sleeping outside.

This is 5-4,

a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have sickened our nation like Olympic swimmers in the Sen.

I'm Peter.

I'm here with Rhiannon

and Michael.

They got what, E.

coli?

Is that right?

Yeah.

No, every they're getting wiped out in the fucking Sen, dude.

They trying to make their dreams come true?

No, you just get diarrhea and go home.

What is this, a Texas public pool from when I was in third grade?

Like, come on.

No, this is just French drinking water.

This is what all their water is like.

This is why they don't give it to you in restaurants, you know, unless you ask.

Today's case, Grants Pass v.

Johnson.

This is a case from this past term about attempts by cities and states to crack down on homelessness, so to speak.

Many jurisdictions have criminal laws targeting homeless people.

So, for example, laws forbidding sleeping outdoors or camping on public property.

Some people experiencing homelessness have challenged these laws, saying that they are unconstitutional because they effectively amount to cruel and unusual punishment for people who are unhoused in violation of the Eighth Amendment.

But the Supreme Court in a 6-3 decision from just a couple months ago says that it's fine.

Yeah, really rounding out like the cruelty of this past term.

This one's ugly.

So jumping into the background, homelessness is actually criminally punished like across the United States in a lot of different ways.

It comes in the form of laws, generally speaking, that make public camping illegal in a lot of cities across the country.

You can't just pitch a tent on the sidewalk or in a park, right?

Public camping or setting up an encampment is illegal by city ordinance, sometimes by state law, but that means for people who are unhoused that their status, sleeping out in public, is criminalized.

In most places, this kind of criminalization scheme, the statutory scheme, starts with civil fines.

Like first, you get a ticket for having a sleeping bag or pitching a tent outside in a public place.

Starts with a ticket, but then in a lot of places, like this city in this case, Grants Pass, Oregon, those civil fines, the tickets, if you are found to have violated this law against public camping multiple times, then it can lead to a criminal charge.

It can lead to jail time.

So Grants Pass, Oregon, began aggressively enforcing penalties for public camping, for sleeping outside on public property, just a few years ago.

And what they would do is they would issue those tickets, those fines, starting at $295.

And then the fines would increase if you did not pay that ticket, which you can imagine, listener, if somebody is unhoused involuntarily, they have not chosen to live out on the street.

They have not chosen to have to be pitching a tent in a park.

They likely do not have the money to pay that $295 ticket.

Well, in Grants Pass, Oregon, that ticket, if you leave it unpaid, becomes a fine of $540

and it gets worse from there.

Following those two citations, if you're given a ticket twice for public camping in Grants Pass, the law then allowed that police could arrest that unhoused person for criminal trespassing.

And criminal trespassing holds a possible sentence up to 30 days in jail and a new fine, a new penalty of over $1,000, $1,250.

Actually, the original lead plaintiff in Grants Pass v.

Johnson in this case, she

actually passed away while this case was pending.

She died at the age of 62.

In her situation, individually, she had over $5,000 in penalties in Grants Pass for living outside.

Now, let's talk a little bit about homelessness and this criminalization scheme in general.

There's a Cornell professor named Charlie Willison who has studied the influence and the relationship of police on city municipal homelessness policies.

And Willison's research has found that 22% of mayors in more than 120 cities across the country, that those mayors station their homelessness staff, like the city homelessness staff, within police departments.

So, again, this is the, you know, these kinds of policies, which in effect criminalize homelessness itself, this is pretty ubiquitous to the extent that, you know, more than one in five mayor's offices, city administrations house their homelessness staff inside a police department.

That is about criminalizing homelessness, right?

And then, even among those cities that put their homeless outreach teams elsewhere, Willison's research has found that most still include formal roles for the police.

There is a designated role that police take in the quote-unquote homelessness problem in the city.

And 76% of homeless outreach teams formally involve the police.

The two plaintiffs in the Grants Pass V.

Johnson case here, who sort sort of like took over as lead plaintiffs after the original lead plaintiff passed away.

They are two people who have been unhoused in Grants Pass, involuntarily so, for several years.

And they don't even actually pitch tents or sleep outside.

literally.

These two lead plaintiffs sleep in their cars,

still criminalized, still given multiple tickets, still owe

you

still owe a ton of money to the city for those violations, have done jail time for those violations.

So that's what's going on here.

So yes, it's Grants Pass, Oregon, where this statutory scheme is coming up to the Supreme Court and this question about whether or not the Eighth Amendment allows for this kind of criminalization of homelessness.

But this should be a familiar news item, city issue, local issue to many listeners across the country.

It certainly is here in Austin.

Yeah.

And before we get into the opinion, there's just a little bit of background I wanted to add.

Also, just so you have a sense of like what we're talking about, Grants Pass, it's a very small city, 39,000 people, and the unhoused population is estimated to be around 600 people.

Yes.

That's what we're talking about here.

Just so you guys know, I tend to say homeless instead of unhoused, just because I think that people,

well, first, like it's in the literature, but also I think a lot of people tune out, like persuadable people tune out because they think you're a squishy little lib.

Yeah, I use it interchangeably.

So let's talk about the law here.

In 2018, there's a case in the Ninth Circuit Court of Appeals called Martin v.

Boise.

Boise, Idaho had a law making it illegal for people to sit and sleep outside.

This was obviously targeted at homeless people.

And, you know, like a lot of these laws, they could theoretically apply to people who weren't homeless, right?

Like, are you hanging out on a bench for too long?

It might technically be illegal, but no cop is ever going to tell you to leave unless you look like you are homeless to that cop, right?

So what the Ninth Circuit said was laws like this are unconstitutional unless the people in question have access to shelter.

In other words, you can make it illegal to sleep outside, but you need to provide adequate shelter beds first.

This caused a big stir on the West Coast, which is the Ninth Circuit's jurisdiction, in part because many major cities on the West Coast don't have an adequate number of shelter beds.

So take San Francisco, for example, which is sort of the center of this controversy, even though it's not really part of this case per se.

San Francisco's per capita homeless rate is very high, but it's fairly comparable to New York City's.

The difference is that Over a half of San Francisco's homeless population is unsheltered, while New York's is 95% sheltered, which means that unhoused folks in San Francisco are often more visible, often congregating in encampments.

Residents and politicians of all political stripes, I might add, want police to be able to bust up and clear out those encampments, but they can't because of this Ninth Circuit ruling, which basically says you need to provide shelter beds before you do that.

This case is basically a manifestation of that same problem.

The law functionally makes sleeping outdoors in Grants Pass, Oregon illegal.

Under the rule the Ninth Circuit created, you can do that.

You can make that illegal.

You just need to provide adequate shelter beds first.

Otherwise, it is considered cruel and unusual punishment.

Yeah, and this is why, like, in the beginning, I was emphasizing like involuntarily homeless.

So, like we said, yes, the law applies equally to everybody.

I cannot, as an Austin resident, pitch a tent in a park in Austin and spend the night there, right?

But what criminalizing homelessness means is that for people who do not have another option, this law and the penalties associated with the law, the punishment only falls on them.

I mean, it's literally

the law in its majesty forbids rich and poor alike from sleeping under the bridge.

It's not like similar to that idea.

It's literally that idea.

It's that idea.

It is that idea.

It's what he was writing about.

Yes.

Thank you, Anatoly, for solving this case 150 years ago.

Yeah, I think it's worth highlighting this idea because a lot of the popular discourse about this case is about whether you can or should forbid people from camping on public property.

But no federal court, the Ninth Circuit included, has held that you can't forbid people from public camping.

All they've said is that if you do want to forbid it, you have to provide adequate shelter for them first.

So,

Neil Gorsuch

right to the majority here.

He makes several arguments.

We're going to go through a few of them, and we're going to ignore a couple.

So the first argument Gorsuch makes is about the Eighth Amendment itself.

The Eighth Amendment forbids cruel and unusual punishment, but conservatives and liberals have long disagreed about what that actually means.

Gorsuch argues that what this really means is that certain types of punishment are forbidden because because they are too cruel.

So like

you can't draw and quarter someone or do some other medieval torture, right?

Liberals have argued that it's not just the type of punishment, it's also about proportionality.

So prison might be a common type of punishment, but life in prison for petty theft is so disproportionate that it's cruel and unusual.

So Gorsuch is trying to push the conservative line here by saying, look, the actual punishments under this law and grants pass are pretty minor, right?

A fine, a small amount of jail time, those don't qualify as cruel and unusual punishment.

Basically an exercise in divorcing the punishment from its context, right?

Yeah.

Very stupid.

I think transparently stupid, but he leads with it because it is essential to the conservative project here.

They can't concede that the Eighth Amendment might even theoretically cover this situation.

We have to note that, like, especially this part of the analysis is completely a sort of abstracted exercise, right?

Like, okay, somebody, you know, breaks the law and then the punishment for breaking the law, that's, it's not so bad.

It's not so bad relative to, my God, you could, you could be executed by the state as punishment for a crime in the United States, right?

But again, like no actual concrete, material, realistic analysis of how these punishments are doled out only on a certain population and what that punishment means layered on top of numerous of the same punishment over and over in somebody's life.

So, to the point where multiple times a week, they're kicked off the place where they're sleeping and they don't have another place to go.

Multiple times a year, they are jailed for this.

Multiple times a year, they are being assessed with more and more fines that add up to the tune of thousands of dollars, right?

That's all context.

Yeah, legal analysis is about abandoning abandoning context, right?

According to Gorsuch, it is.

So keep in mind, again, Eighth Amendment says no cruel and unusual punishment, right?

Their argument is that if something is cruel, it's either always cruel or never cruel.

Yeah, right?

Right.

Which is preposterous.

Yeah.

Just like a wild interpretation of that word.

And that it needed to be considered cruel when the Eighth Amendment was ratified, right?

Right.

Yeah.

So like literally walking up to someone on the street punching them in the face cruel what do you guys think i'm gonna say yes right so does that mean punching someone in the face is always cruel what about boxing matches oh i guess it's never cruel it's right yeah just just stupid uh logic for babies okay

so the next part of the argument is about precedent There is a case from 1962 called Robinson v.

California, where the court said that you cannot make it illegal to be addicted to drugs.

The idea was that you cannot criminalize someone's status.

You need to criminalize their conduct.

So you can make it illegal to use drugs, but you can't make it illegal to be addicted to drugs.

But then there is a case from 1968 called Powell v.

Texas, where the court held that it's fine to prosecute someone for public intoxication,

even if they are an alcoholic.

So there's a question here of where status ends and conduct begins, right?

There's a gray area.

When are you prosecuting someone for their status as a drug addict, an alcoholic, a homeless person, whatever it might be, as opposed to the conduct that is very closely associated with that status?

Or and sometimes the conduct that you don't have a choice about that that isn't

status.

That's hustle culture.

That's hustle mindset.

If I wake up in a tent in grants pass oregon by the end of the day i'm living in a mansion in seattle yeah and that's because you're an alpha that's because i'm watching youtube videos about how to get there about crypto arbitrage

so gorzich tries to interpret this all as narrowly as possible basically saying look this doesn't criminalize being homeless It just criminalizes living and sleeping outside.

Wink, wink, wink.

He says, quote, Grants passes public camping ordinances do not criminalize status.

The public camping laws prohibit actions undertaken by any person, regardless of status.

He's almost doing the quote.

Exactly.

It makes no difference, he says, whether the charged defendant is currently a person experiencing homelessness, a backpacker on vacation, or a student who abandons his dorm room to camp out in protest on the lawn of a municipal building.

Oh,

just just left hooks at those fucking gossip protesters.

Got it in there.

Got you.

He's like,

whether you are homeless or some fucking communist college student, we will arrest you.

Right.

And it's fair constitutionally.

Before we move on, I do want to point out,

as was pointed out in oral argument, again, in practice, this is not the case.

If like a fucking businessman is like sleeping on a bench, the cops are very unlikely to cite them.

You know what I mean?

Very obviously true.

Actual testimony.

Sudomar talks about in her dissent, and we'll talk about it later.

But like, yeah, you could go out and watch like the Purseads meteor shower this month in a sleeping bag and you won't get fined and grants pass.

Like that's not something that's going to happen.

Their fucking chief of police testified.

That's not how they apply the law.

Like, no, right.

Like, that's just not true.

It's not.

Yeah.

And note that Gorsuch is is also using the term a person experiencing homelessness.

Like

woke terminology.

He loves this.

Yeah.

This is his, this is his fucking bag, right?

He's having fun.

There's obvious disdain throughout for people who are homeless, right?

Throughout the majority and throughout Clarence.

People who care about this.

Yeah, and people who are left-wing.

Exactly.

And throughout Clarence Thomas's concurrence.

And so I think like using a person experiencing homelessness to them is also a way of saying like a person who has a choice right like you might temporarily be experiencing this but you could long-term not be if you got your choice a person lacking grind as neil calls them exactly so yeah he's doing this whole sort of like we're not criminalizing status we're just criminalizing all of the things that come with status very necessarily.

Yes, right.

It's top-tier pedantry.

You know, this is the level of pedantic that you need to be if you want to be on the Supreme Court.

Again, you know, the problem with this analysis, quite obvious, there are things that necessarily flow from someone's homeless status.

If you do not have a house, you will have to sleep outdoors

or in a tent or in a car.

If you do not have access to restrooms, you will have to pee outdoors, right?

Gorsuch doesn't really reckon with this because he just says it's hazy what is necessarily part of being homeless and what is not.

The dissent really beats him up on this point because he doesn't actually explain where he draws the line.

He's just like, oh, this is like a slippery slope and it's sort of a gray area.

And then he moves on.

There's no like actual logic here.

There's also something worth pointing out that he mentions that if you are homeless, instead of arguing the Eighth Amendment, you could theoretically argue what's called a necessity defense.

Necessity is the idea that if you commit a crime, you can sometimes say as a defense that you needed to commit it,

usually for personal safety reasons or something similar.

Classic example, stealing bread to feed your starving family, right?

This sounds theoretically nice.

It basically never works in practice.

And moreover, it doesn't really do anything to help the fact that like San Francisco is now running sweeps on homeless encampments, right?

Using police based on this opinion.

But those cases aren't generally prosecuted.

They just disperse the camps pretty violently, seize people's shit, throw it out, et cetera, and call it a day.

So the necessity defense doesn't do anything for them there.

If someone like brings you to court, then maybe you can raise it.

Maybe.

I don't know, Rhea, you're a public defender.

How often have you seen the necessity defense work?

Right, not at all.

I was just going to say, like, as somebody who has represented unhoused people who are arrested for criminal trespass, who are arrested for public camping, again, this is what you miss in Gorsuch's completely abstracted analysis, right?

Is what actually happens in these prosecutions and how this actually actually operates in people's lives.

So, you know, people who are arrested for this, often they go to jail.

When they're released, what did jail do for them?

Nothing.

They're still homeless.

They're still in violation of the law, sleeping wherever they sleep, living wherever they live outside, right?

And in terms of like getting granular about the actual like process of the prosecution, this is just another one of those misdemeanors that is the engine of mass incarceration in general.

So unhoused people get arrested, they come to jail, they take very quick deals, usually.

They will plead guilty, right?

Yeah, because what defense do I have to this?

And my status is never going to change.

And often I'm not representing you for the first time that you were arrested for this.

Right.

And so somebody would say, a client would say, I've pled guilty to this 10 times before.

And by pleading guilty, I get out of jail in one night.

And then, you know, when the cops catch me again, they catch me again.

So, it's yeah, it's just not realistic that they're going to be like, No, actually, I would like to stay in jail because I don't have the money to get out on bond.

So, I'm going to stay in jail, though, because I want to take this to trial and test out a necessity defense

in front of a jury.

Yeah, yeah, no, the necessity defense is something that they teach to one-el's in crim law so that they leave feeling a little bit better about the justice system.

That's what the necessity defense is.

Yep.

So, the last argument that Gorsuch makes in the majority opinion is basically that the court consists of mere judges and they don't have the wisdom to address the complex issue of homelessness and therefore this should be left to legislators and the voters.

And my only thought about this argument is like, can we please?

Can we just please stop doing this?

Can we please end this fucking charade?

Every time a judge wants to enforce a constitutional right, they're like, this right is so important.

It is woven into the fabric of our nation.

This right should be its own star on the flag.

And then

every time they don't want to enforce a right, they're just like, this issue is so important.

It must be left up to our beautiful democratic process and not a mere judge.

Democracy should be a star on the flag.

So here, Neil is like, wow, homelessness, too complex.

But when it was like COVID restrictions, all of a sudden he's a a fucking scientist, just beakers and lab coats up in this bitch.

Yeah.

Like he's all over it.

Right.

And liberals do this too, which is why I am asking everyone,

can we please stop?

Can we please drop this argument?

It's embarrassing.

It's embarrassing for all of you.

It's embarrassing for our country.

And it's awesome, Majesty.

Libs and conservatives the same.

Stop.

Stop the bad faith bullshit.

It is awful.

At the end of every one of these fucking opinions, there's like a couple paragraphs about this, no matter who's deciding it, no matter what the fucking issue is.

And we're the only people who are contractually obligated to read it.

And so I'm just begging.

Let's move on to a good faith argument, the Thomas concurrence.

Yes.

Clarence Thomas, of course, agrees, right?

It's not cruel and unusual to criminalize homelessness.

It's fine.

But he says, quote, I write separately to make two additional observations.

Just a modest little concurrency.

Right, right.

I have two other observations.

I've just noticed.

He's not concluding anything.

He's just observing.

No, no, I just noticed two other things.

I just want to talk about what I'm noticing here.

Just spitballing.

Here's some other fascist shit that I'm noticing, that I'm noticing and I'm liking, right?

So one of Thomas's observations, there's that case, Robinson v.

California, that comes up in this case.

That's the case that says you can't criminalize a person's status, right?

You can't criminalize the fact that a person is addicted.

And Thomas throws it in there that, hey, by the way, I think that case was wrongly decided, right?

And I think that case is wrongly decided primarily because in that case, the Supreme Court did not do an originalist analysis of the Eighth Amendment.

He says, quote, modern public opinion is not an appropriate metric for analyzing the cruel and unusual punishments clause.

Right.

So, yeah, back to that thing where the conservatives don't like analyzing the cruel and unusual punishments clause by any standard other than when the Eighth Amendment was ratified, what was considered cruel and unusual back then.

Yeah, right.

Except they also probably wouldn't like that because why do I feel like the founders might have found it unusual

to kill a man with electricity, which they had found out about two years prior.

Yeah.

This thing that

like we're going to take lightning from the sky and just send it through a human being until they die.

You don't think the founders might have been a little bit jarred by that?

That's a really good point.

That's a really good point.

And then

in his observations, Clarence Thomas, he wants to take a broader swipe here.

He wants to take a broader swipe at Eighth Amendment jurisprudence in general.

Again, calling out this kind of idea that the court will sometimes analyze, or in the history of its Eighth Amendment cases, has sometimes taken into account, quote, evolving standards of decency.

Again, this idea that our standards about what is cruel and unusual punishment.

As a society, those standards have changed over time.

It's not a fixed idea about what is cruel and unusual, as Clarence Thomas and the conservatives would have you believe.

So he's taken a broad swipe at Eighth Amendment jurisprudence in general.

This is a swipe at the plaintiffs in this case, the arguments being made, right?

He's saying, quit that.

That's not what the Eighth Amendment means.

Shut the fuck up.

And on top of that, I think his final little observation, the Eighth Amendment, according to Clarence Thomas, it doesn't apply to this case at all

because when the Eighth Amendment was ratified, according to Clarence, punishment, like the word punishment in the cruel and unusual punishment clause, punishment just means like the sentence for a crime, the penalty that's imposed after somebody says they're guilty of a crime or found guilty of a crime.

So in this case, in Grant's pass, he says the Eighth Amendment doesn't apply at all here because Thomas's argument is that being assessed a civil fine, like being given a ticket is not having been found guilty of a crime.

And for that guilt, you are assessed a punishment.

Of course, this is completely ignoring that as part of this case and in the statutory scheme here, you can be arrested and jailed

for a crime.

You gotta, you gotta love what the conservatives have done with the Eighth Amendment, where it's like, no cruel and unusual punishment.

And they're like, well, what's cruel?

You know, what's unusual?

And then, like, eventually they're like, what's punishment?

Yeah.

What if going to jail sometimes isn't punishment?

You You know, like that's, yeah, he's just kind of like throwing it out there.

Again, just his observations.

He's so fucking nuts, but I do appreciate he's always on his grind.

That's right.

When it was a 5-4

court and the median vote was Anthony Kennedy, and so there were a decent number of lib wins.

He was having his loan concurrences or loan dissents.

Now it's a 6-3 neo-Confederate freak supermajority, and he still has his lone concurrence.

He's always pushing, man.

That guy does not sleep.

In this concurrence, he cites himself, quotes himself in other cases, in a dissent.

Yeah, he's, he's, it's, it's wake and grind for sure.

And I respect that.

We do that too.

I'll be like, we talk about this in our last Eighth Amendment case.

You know what I mean?

Who else do you cite when no one does it better?

That's right.

That's right.

That's right.

There is a dissent.

It's pretty good.

I'm going to read the opening paragraph because I thought it was pretty good.

I think it hits a lot of the important points, if not all of them.

So Sotamayor.

Both Kagan and Jackson join her.

She opens, sleep is a biological necessity, not a crime.

For some people, sleeping outside is their only option.

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.

That is unconscionable and unconstitutional.

Punishing people for their status is, quote unquote, cruel and unusual under the Eighth Amendment.

See Robinson v.

California.

Was that Sonia Setomayora?

Is that Joseph Stalin?

that's it it's like there doesn't there literally doesn't need to be anything else this could have been a per curium nino opinion in any sane fucking world that's just that paragraph yeah it could be yep but then she goes on and does something i thought really great first she talks about the statistics of how people end up homeless sort of illustrates i i think there is a sense in the public consciousness and you see this in the majority opinion as well that when people hear the word homeless or see an unhoused person

or read a story about homeless people, they think crime.

Their mind goes to crime and they conflate it with crime and often with violent crime.

And I think she illustrates nicely that not only is that not the case, that often, for example, a huge portion of women who are homeless are because they're fleeing violent crime in the form of domestic abuse.

I think she says 60% 60% of homeless women are

because

they're fleeing domestic abuse, right?

These are victims of violent crime, not perpetrators of violent crime, not the equivalent of violent crime, which is how they're often treated.

She talks about the inaccessibility of a lot of shelters, supposed shelters, for people with wheelchairs, for example.

And then she starts going through individual named homeless people and a lot of their issues in the case and

really

vividly illustrates that these are human beings and they are

probably very good human beings who have had a very tough time.

But even if they're not good human beings, they have not necessarily done anything to deserve this sort of treatment.

She points out that, like, one of the only places to get shelter in Grants Pass is this church, the gospel rescue mission, but they don't allow people to bring medical equipment in.

So one of the homeless people who has a nebulizer that she needs to use to take medication that she needs to survive every four hours can't stay there.

There might be an open bed, but she can't stay there because doing so would kill her, right?

Like some of these shelters require people to work.

for the shelter while they're there, which you can't do if you have a job as well and are trying trying to save money to get shelter.

And on and on, naming people, describing their circumstances, including the plaintiffs who live in a van.

She points out that, you know, they got pulled out of their van twice.

The night shift police talk to the day shift about like how they are continue to show up sleeping in their van.

So you should check on it and tow the van in the morning.

This isn't about helping homeless people.

This is about punishing people who don't have a place to live until they flee Grant's pass, right?

And who the fuck are we kidding, right?

Like, Sodomayor, after she illustrates all that, then takes the majority to task for their sloppy logic and their eliding of important facts, right?

She points out that like, you know, Gorsuch does this little dance.

This is not criminalizing a status.

This is criminalizing an act.

And she's like, the session this came out of was about how to address homelessness and included things like, well, maybe we just give him a bus ticket out of town, right?

Like, of course, they're just living in a fantasy land or not living in one, constructing one.

He's constructing a fantasy land to hide the cruelty.

And then at the end, she takes apart all his dismissal of precedent, which I thought was very good.

She points out the case he relies on, the Robinson case that Peter mentioned about the person who is intoxicated and the line between being an alcoholic and being drunk in public.

She points out that there's no majority opinion.

Four people thought this crossed the line.

Four people didn't.

And the deciding vote was like, he didn't make a factual showing either way.

So we don't even have to decide that here.

So Gorsuch is deciding he agreed with some non-controlling opinion and is pretending like that's actually the controlling opinion, right?

And essentially extending that.

It's really good.

It's really good.

It's vivid.

It

lays out the stakes.

It humanizes people, dissects the majority, and it doesn't matter because they only got three votes.

Yeah.

Another thing that I think is good about Sotomayor's dissent is, you know, while the majority, and of course, like we talked about, Clarence Thomas in his concurrence, really want to hide the ball and obfuscate what is punishment or like,

are people really being punished for being homeless?

I don't think so.

Sotomayor like sets it up really clearly, right?

Like, call it what you want.

If it's being punished for being homeless, whether it's being homeless, whether it's a lack of property ownership, whether it's a lack of access to the money that would give you access to shelter, whatever it is, if you are going to jail for that, you're being punished for it.

This is punishment.

And I think there's a couple of really, really sharp paragraphs in Sotomayor's dissent that zoom out a little bit more and talk about how this criminalization this cruelty this unusual punishment for being homeless is not

effective at all as a policy

People get out of jail and are still homeless.

They don't have anywhere to go.

So this criminalization scheme is actually a really good example of how the punishment is is the point, the cruelty is the point.

And so,

why would that not factor into our cruel and unusual punishment analysis?

Right?

There's no other reason to do it except to be cruel because it doesn't accomplish a single other thing for society.

It delivers serotonin to the brains of psychopaths all across the city.

Exactly.

Exactly.

So, just to speak to the issue of homelessness in America for a second, it's remarkable how much this gets framed by politicians as like us, the real residents, against them, the people who don't have houses, right?

The intruders into your personal space and daily life, as if the government does not have an obligation to the well-being of homeless people at all.

Right.

The obligation runs only to the well-off who were entitled to be free from the presence of poverty, but the impoverished themselves are not even entitled to a bed, right?

These ostensibly liberal cities like San Francisco have large unsheltered homeless populations.

And the only solution that these folks are interested in is having cops forcibly clear homeless encampments.

London Breed, mayor of San Francisco, was alongside Gavin Newsom, governor of California, decrying the Ninth Circuit's rule on these cases, saying that it was hampering the ability of the city to address the issue of homelessness.

What they all left out is that all they had to do was provide shelter beds.

And then they could have cleared the camps legally, but they were unwilling to provide the shelter beds.

The dark irony here is that this gets metabolized by the general public as the failure of like liberal policies, policies that purportedly coddle the unhoused population, when in fact, it's a failure of conservative policies.

The problem in San Francisco isn't that unhoused people have it too good.

The problem is that there's not enough shelter.

That's why New York, with similar rates of homelessness, doesn't have the same problem San Francisco does because the city is providing beds.

There's just a dishonesty that runs through this discourse from the politicians to the judges.

Everyone just pretending that the real problem is something it's not.

And like Neil Gorsuch saying, well, this is so complex.

Not really.

In cities where there's affordable housing, there's less homelessness.

There's a book about this from a couple of years ago called Homelessness is a Housing Problem that basically sets out to prove this and I think does in compelling fashion.

It's actually just not that complicated of an issue.

It might seem complicated when all you're doing is like dispersing homeless people and hoping that they disappear without providing them with any material support.

It might seem like it's an intractable problem.

That's because your solution sucks.

You're not doing anything.

You're not doing shit.

Yeah.

In California, I think it's worth mentioning, like the Los Angeles piloted a universal basic income program, and it was wildly successful and helped unhoused people, homeless people get off the streets.

It helped unemployed people find jobs.

It helped sick people get healthy.

It was just a wild success.

The idea that these are just lazy bums who are sucking off the government teat or whatever is disgusting.

It's almost certainly racist, or at least playing on racial tropes, and just not founded in anything empirical, right?

And just because there are shitty Democrats who embrace this sort of demagoguery or turn their back on their neighbors doesn't mean that this is a failure of liberal policies, right?

This is a failure of democratic politics.

Yes,

I will concede that

because they're fucking cowards, right?

Right.

I also want to point out one common talking point.

You'll often hear that like, well, it's not worth providing shelter beds because they'll turn down shelter beds.

See, right?

Now,

there is a small percentage of people for which this is true.

Yeah.

But for most people, it's not.

And what's actually happening is, for example, there was a number being paraded around a couple of years ago that was like, we offered people in San Francisco a shelter bed and over 90%

of them said no.

I think it was like 7% said yes.

Proof that the shelter beds are not the issue, right?

Except if you drilled down, what actually happened is that they said, we can provide you with a shelter bed for a week.

You have to give up your tent if you have one, as well as other like certain like material possessions, no pets, right?

You're separated by gender.

So if like you have a significant other who's on the streets with you, you can't be together.

All of these criteria,

and the trade-off is that you get a bed for a week and then you're back in the same exact situation.

No tent, no pet, right?

Obviously worse.

So like we were talking about it like, I was like 7% of people said yes to that.

Yeah, it's insane.

That's actually surprising.

Yeah.

And I'm not saying that that's what's happening in every single situation.

I'm sure that there are people who are just like, I prefer the streets to a bed, whatever.

Those people exist.

I'm not going to like play the naive liberal or whatever the fuck, but be aware that when you hear those stories, they are very, very frequently manipulated by bullshit like that.

Or, or, like, you know, like I mentioned, the gospel rescue mission, right?

Like, a lot of times, the only shelter beds available are ones that will not just take away your medical equipment, but are religious, are politically active religious,

and will require you to listen to multiple sermons, will require you to maybe even join the church if you stay more than a couple nights.

I'd rather sleep in a busy intersection than do that for a month.

Yeah, no, it's a huge problem in Texas.

There are real safety concerns, psychological, physical, and otherwise, for living in many of these shelters that are legitimate concerns from from the people who our society thinks should be so grateful for the opportunity, you know?

Sotomayor in the dissent makes some good points about how homelessness, yes, it's a complicated policy issue, but it is a policy issue that is related, born out of housing policy, right?

It's a failure of housing policy.

It's a failure of the cost of housing in this country that we have a homelessness crisis.

Whereas the majority wants to paint and yeah, does sort of like use this kind of like escalatory language that like cities in the western United States are dealing with a crisis.

And how are they supposed to deal with it when we tie their hands by saying that it's cruel when they send cops to sweep these encampments?

And Sotomayor is like, yeah, no, that's actually scapegoating.

People who live in poverty cannot afford housing as a result of housing policy decisions, as a result of decisions that are made on municipal and city and state budgets.

She cites a study that showed that every $100 increase in median rental price is correlated with a 9% increase in the estimated homelessness rate.

So these things are very obviously connected, right?

The solutions are quite clear, are studied, are available.

And the crisis nonetheless is a result of policy decisions.

And rhetorically and in discourse and in the cruelty that is doled out by the state, it's because we just scapegoat the people who those consequences have fallen on and create an other out of that group that our society and our government is against, where the state and residents, quote unquote, are on one side versus homeless people.

Rather than, like you said, Peter, the state helps residents, has a duty to do that.

That is the state's responsibility.

And residents certainly includes unsheltered, unhoused people because they are literal.

residents of this place, of this geography.

And, you know, this kind of scapegoating and we've talked already about how the cruelty, the punishment part is obviously the point of these schemes because it doesn't achieve anything else.

And

state politicians and law enforcement keep wanting to do it anyway.

It reminds me of Angela Davis's writings on prison as a way of disappearing social problems.

It doesn't actually improve society.

It doesn't actually do anything for us.

What it does is it disappears social problems like mental illness, like poverty, like a lack of education, what have you, so that people with money, people who are more well off, don't have to think about those social problems, so that politicians don't have to think about solving those social problems with better policy.

And Angela Davis, of course, is talking in the context of prison, of caging people, but this kind of even lower level criminalization in general is an example of that same exact dynamic.

Yeah.

If I can build on that just a second, I mean, I'm going to talk about fascism a lot till the end of this election and then possibly forever after.

We'll see.

But part of what fascism is, is giving people a license to be repulsed by human beings they don't like and then providing state power that backs that revulsion, that makes the state a weapon against the people that repulse them.

And that is what is happening with unhoused people across the country.

The way that people talk about

homeless people in liberal San Francisco is fucking wild.

It should be alarming to you, not just because it speaks to a discrete problem in San Francisco, but to

a permission structure being created by the rhetoric that we use in our political discourse.

Yeah, I've been thinking about this a lot.

because of this case, but also because of election season and zooming out a little.

I think you often see this instinct from politicians and pundits that, well, you know, democratic policies are good and they make people's lives better.

And so we should win power and enact them.

But in order to win power, sometimes you gotta,

you just gotta throw some people under the bus.

Maybe it's homeless people.

Maybe it's trans people.

Maybe it's immigrants Yeah.

These days, you know, 15 years ago, it was maybe it's gay people.

30 years ago, maybe it's black people.

This is a consistent theme in politics.

And I just want to say,

if you have ever had that instinct that you cannot build a better world on the back of the suffering of

some discrete group, some marginalized group.

That's not how it works.

Like, you have to build a liberatory politics.

You have to envision a society where we are all equal.

And if you can't work towards that, if you can't speak eloquently about that, if you can't try to convince people about that, all you're doing is reifying a class and race hierarchy that will almost certainly eventually be turned against the group you do care about.

No.

You know, we have to say it's a 6'3 conservative supermajority, an Eighth Amendment case about whether or not something is cruel and unusual, punishment.

It was doomed.

Nobody expected that this would go any other way.

I'm actually a little bit surprised that they even threw a bone to like, hey, this might be a necessity defense,

right?

Maybe.

And that's borne out also of just looking at Eighth Amendment jurisprudence in general.

Yes, sometimes the Eighth Amendment Supreme Court cases have been about what a certain punishment can be for a certain crime, but most Eighth Amendment jurisprudence at the Supreme Court is about the death penalty.

And obviously we still have the death penalty.

The death penalty itself has not been ruled cruel and unusual punishment.

And so, you know, we've talked on the podcast before about how if our society accepts that the state can murder somebody legally, that that is not cruel and unusual, then there's a ton of violence that, therefore, there's a ton of cruelty that flows

sometimes.

By the way, is, yeah, yeah, and that's okay.

Yep.

And so that just makes me think about the cruelty of this term more broadly.

We've talked a lot about cases from this past term at the Supreme Court that are about, you know, the administrative state or

presidential immunity or things that maybe don't feel sort of granularly in this way, viscerally cruel to

people that you see every day, people that you know, you know, people who are members of your family.

This case really drives that home, that there's no limit to this conservative Supreme Court.

There's no limit to the violence that the state can dole out on an individual, really.

That's what this case for me represents in the context of the whole term.

thinking about the whole term and how cruel it was just overall and the eighth amendment i i just i want to say if the democrats have a governing trifecta in six months and and don't have court reform i will consider that cruel and unusual punishment to my brain

to me yeah to me i'll be very upset free me free me of this every four years you get a few months of michael lieroff pretending that court reform is going to happen.

I want it to be over.

It is so painful.

I know.

I know.

We wouldn't have a podcast anymore, Michael.

I am ready to take that pivot.

What are we doing?

We should be brainstorming a pivot.

Will I abandon the podcast?

Never.

Absolutely not.

No.

I will just squeeze this until it's unbelievably dry.

You'd be shocked by how dry it will have to be before I stop squeezing.

All right, folks, next week, Fisher v.

United States is a case about a patriot, a man who appreciates civil disobedience and who appreciated it so much that on January 6th, 2021, he went to assist Donald Trump in his mission to validate the election results.

What will the Supreme Court justices say about this young rap scallion?

Find out next week on 5-4.

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Bye.

Bye, everybody.

5-4 is presented by Prologue Projects.

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