What a big new Supreme Court decision could mean for homeless Americans

The Supreme Court has issued its long-awaited ruling in Grants Pass v. Johnson, the most significant legal challenge to the rights of homeless people in decades. 

In a 6-3 decision written by Justice Neil Gorsuch, the Supreme Court ruled that cities enforcing anti-camping bans, even if homeless people have no other place to go, does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. Gorsuch was joined by the rest of the court’s conservatives, including Chief Justice John Roberts.

“The Constitution’s Eighth Amendment serves many important functions, but it does not authorize federal judges to wrest those rights and responsibilities from the American people and in their place dictate this Nation’s homelessness policy,” the opinion read. 

Friday’s ruling has huge implications for cities and people experiencing homelessness nationwide. It strikes a fatal blow to two Ninth Circuit decisions — the Grants Pass v. Johnson case and its 2018 predecessor Martin v. Boise — that have shaped cities’ responses to homeless encampments. 

Leaders from dozens of cities and states — both liberal and conservative — have been hoping the US Supreme Court would overturn the Martin and Grants Pass decisions, which they claimed were incorrectly decided and left governments hamstrung and incapable of safely managing their communities. 

Many groups representing the rights of unhoused people, in turn, argued there was no reason for the US Supreme Court to reconsider the rulings, and warned that doing so will make it both easier to criminalize people experiencing homelessness and much harder to land them permanent housing later on.

The Supreme Court declined to hear a challenge to Martin in 2019, but pressure mounted on the high court as the nation’s homelessness crisis grew worse, especially in the Western states under the Ninth Circuit’s jurisdiction. 

Over 650,000 people in America experience homelessness on any given night, and roughly 40 percent of those individuals are sleeping outside on the streets, in cars, parks, train stations, and other places not designed primarily for people. Federal data published in late 2023 showed a rise in homelessness in most states.

Homelessness advocates immediately denounced the ruling, warning that it will make things worse and further marginalize vulnerable Americans. 

The Grants Pass decision undoubtedly marks a significant setback to the constitutional rights of homeless people, and local governments will feel more confident passing punitive policies with the Supreme Court’s blessing. 

But it will not end the political battles over tent encampments. It only concerns what cities can do, and not what they should do. 

Conservatives want clearing homeless tent encampments to be non-discretionary

Those who want cities to be more aggressive in clearing homeless tent encampments are celebrating.

Theane Evangelis, the lead counsel for the city of Grants Pass, Oregon, praised the Court for “restor[ing] the ability of cities on the frontlines of this crisis to develop lasting solutions that meet the needs of the most vulnerable members of their communities, while also keeping our public spaces safe and clean.” She said she hopes that years from now this moment is recognized as “the turning point in America’s homelessness crisis.” 

But even though overturning Martin and Grants Pass would make it easier for cities to clear out tent encampments, local governments still hold considerable discretion over whether they should do so. 

And especially in liberal cities, where leaders may be more inclined to leave people experiencing homelessness alone (or come under more pressure from advocates to do so), some conservatives have long felt additional legislative and legal action would be needed to actually force cities to act. 

“Many cities have used Martin as an excuse, you know, they throw up their hands and say, ‘Our hands are tied,’” said Ilan Wurman, a law professor at the University of Minnesota who hoped the Supreme Court would overturn the decisions. “We don’t think that was a fair reading, that you can’t enforce your camping bans, and reversing Grants Pass would take that argument away [from cities]. But it still doesn’t require them to do anything at that point.”

Instead, Wurman and others have been promoting public nuisance lawsuits as a way to force cities to disband tent encampments. These types of lawsuits can be based on things like loud noise or air pollution, but also things like unsanitary conditions or other health hazards. Importantly, private citizens have the right of action to bring public nuisance claims.

The first successful example of this strategy was in 2022 against the city of Phoenix, Arizona, when Wurman and colleagues sued for a declaration that a downtown homeless encampment on city property constituted a public nuisance. More than 1,000 people had moved to this encampment — known as “the Zone” — and the plaintiffs pointed to the crime, defecation, drug use, theft, and other safety hazards there that threatened public health. Arizona state law defines “[a]ny place, condition or building that is controlled or operated by any governmental agency and that is not maintained in a sanitary condition” as a “public nuisance … dangerous to the public health.” 

A judge ruled in favor of the plaintiffs last year, declaring “the Zone” a public nuisance, and ordered Phoenix to address the situation. The encampment is now cleared, but the city is appealing the decision.

Wurman has had less success in his two other lawsuits pursuing the public nuisance strategy. 

Last September, two Tucson homeowners and one Tucson business owner sued the city for failing to clear an encampment, citing things like trash, fire set by residents that burned uncontrollably, and car and residential theft. 

Like in Phoenix, the plaintiffs asked the courts to declare the campsite a public nuisance and order Tucson to clear it out. The city in turn argued the plaintiffs lacked standing and that they could not be liable for “fundamental government policy,” which includes how and whether to spend its public resources. 

In May, a judge ruled in favor of the city and concluded the plaintiffs failed to show Tucson is “the legal cause of their alleged injuries.” The judge also drew contrasts between Tucson’s situation and the encampment in Phoenix, where Phoenix police actually helped transport unhoused people to be there. 

The residents are now appealing the case, and Wurman told me he believes they’ll win.

“The judge in the Tucson case agreed with us that the city consented to the encampments but then he said the city didn’t consent to the feces or the drugs, and that’s what we lost on,” Wurman said. “We think that is quite frankly insane, right? Because everyone understands that encampments universally come with feces and drugs. Their own city witnesses testified that they’re always feces and urine and needles.”

Wurman saw another setback recently in his third public nuisance case, in Salt Lake City, Utah. The lawsuit, originally filed last September, was dismissed in March, with the judge defending the city’s right to use its discretion. 

“Any given member of the public might complain about how a city allocates its resources, and many such complaints could be articulated under the broad umbrella of nuisance law,” the judge wrote. “The public duty doctrine places limits on when such complaints may be litigated in the courts as opposed to the ballot box.”

Wurman told me they’re appealing this case too, with a brief to the court due next month. 

Homelessness advocates think the nuisance legal strategy will ultimately fail because governments typically enjoy a lot of latitude in deciding where to put their resources and what laws to enforce. When the district attorney of Sacramento filed a public nuisance lawsuit last year alleging the city had let its encampments get out of control, a district judge ruled that most of the DA’s allegations were legally insufficient. 

“The Phoenix lawsuit is an outlier,” Will Knight, the decriminalization director at the National Homelessness Law Center, told me. “I think they’re going to lose on appeal in Tucson and Salt Lake City, and they’re going to keep losing similar nuisance lawsuits.”

Erwin Chemerinsky, dean of UC Berkeley’s law school, also told me he thinks there’s a “huge difference” between reversing a Ninth Circuit decision and courts requiring that cities must clear tent encampments or arrest homeless people.

Still, advocates are intent on trying different strategies, including some legislative ones. The Cicero Institute, an Austin-based conservative think tank, has been pushing bills across the country to ban outdoor homeless camping, and to make cities liable if they fail to enforce those bans. 

A Cicero-backed bill in Missouri that was signed into law in 2022 allows the state’s attorney general to sue local governments that don’t enforce their encampment bans. Earlier this year in Florida Republicans passed a new anti-camping law that allows not just the state attorney general but also local residents and businesses to sue local governments if they fail to enforce their bans. It takes effect this fall.

Another strategy advocates hope to ultimately take nationwide is at the ballot box. This fall, in Arizona, voters will vote on a first-of-its-kind ballot measure that could allow property owners to sue for tax refunds if they can prove financial damages from homeless tent encampments. The right-leaning Goldwater Institute, a Phoenix-based think tank, drafted the measure and hopes other cities will follow suit. 

“Today’s decision is the first step toward a sensible approach to the many problems of homelessness,” said Goldwater Institute vice president for legal affairs Timothy Sandefur on Friday in a statement. “By overturning that decision, the Supreme Court today enables local communities to find actual solutions for the people who are suffering—and who deserve better than to be forced by the Ninth Circuit’s fiat to live indefinitely in public parks and on sidewalks.”

Homelessness advocates hope to galvanize the public around housing solutions

Homelessness advocates, taking a page from abortion rights groups after the overturn of Roe v. Wade, have been in discussions with lawmakers to move forward both state and federal legislation that would codify the Martin v. Boise decision. 

In other words, they hope to push legislation to counteract what the Supreme Court just ruled and ensure that homeless people can’t be punished for sleeping outside on public property if there are no adequate alternatives available. 

They also criticized the decision: “This decision sets a dangerous precedent that will cause undue harm to people experiencing homelessness and give free rein to local officials who prefer pointless and expensive arrests and imprisonment, rather than real solutions,” said Ann Oliva, CEO of the National Alliance to End Homelessness. “This ruling allows leaders to shift the burden to law enforcement. This tactic has consistently failed to reduce homelessness in the past, and it will assuredly fail to reduce homelessness in the future.”

Ultimately, liberal homelessness activists hope to use the Grants Pass attention to focus the national conversation on policy solutions they say will actually solve homelessness, including universal rental assistance, repairs to public housing, and funds for eviction prevention. Advocates plan to call for $365 billion in the next year to fund these initiatives. 

Following the ruling advocates sent out an email blast inviting people to email their elected officials for more funding for housing and to join the “Housing Not Handcuffs” advocacy campaign.

“We knew from Day 1 that the Supreme Court case wouldn’t end homelessness,” said Jesse Rabinowitz, the communications director for the National Homelessness Law Center. “Now, we must use this moment in time to ensure that Congress and the White House do their job by funding the housing needed to ensure that nobody experiences homelessness in the richest country in the world.”