Supreme Court justices sounded deeply divided Monday over whether to give cities in the West more authority to restrict homeless encampments on sidewalks and other public property.
The court’s three liberals said they were wary of giving cities a broad and unchecked power to use arrests and fines to punish homeless people who are sleeping outside.
“Sleeping is a biological necessity,” said Justice Elena Kagan. It “seems like you are criminalizing the status of homelessness,” she told a lawyer representing the city of Grants Pass, Ore.
But conservatives, led by Chief Justice John G. Roberts jr., said they were skeptical of treating homelessness as a status that deserves constitutional protection.
People can be homeless for one week and find shelter the next week. “You can move into and out of that status,” he said.
For more than two hours, the justices and attorneys argued back and forth on whether homeless people should be protected from city laws that could punish them because they have nowhere to sleep.
Los Angeles-based attorney Theane Evangelis, representing the Oregon city, said the problem of homelessness has been made worse in the West because of 9th Circuit Court of Appeals rulings that found it was unconstitutional for cities to impose fines or other punishments on homeless people who sleep outdoors. No other appellate court in the nation has followed suit.
She began by urging the justices to “end the 9th Circuit’s failed experiment.” She said cities should have the flexibility to enforce ordinances that limit where people can sleep and camp.
It was not clear there was a solid majority to overturn the 9th Circuit entirely; some justices appeared to favor a middle-ground approach.
That would allow cities to regulate where people can sleep outside, but it would not prohibit camping or sleeping throughout the city.
Deputy U.S. Solicitor Gen. Ed Kneedler urged the court to adopt that approach. While cities should not make it a crime for homeless people to sleep outdoors, cities should have “flexibility to enforce” reasonable restrictions on where homeless people can sleep, he said.
Many cities in California, including Los Angeles, generally follow that approach.
Justices Brett M. Kavanaugh and Amy Coney Barrett may hold the deciding votes. Both questioned laws that would punish homeless people for sleeping outdoors, but as Kavanaugh put it, they doubted the wisdom of having federal judges “micromanage” a city’s policies for coping with homelessness.
The case of Grants Pass vs. Johnson is the most important dispute over homelessness to come before the high court.
At issue is whether the Constitution protects the rights of homeless people who camp on sidewalks or in parks.
The San Francisco-based 9th Circuit held it is cruel and unusual punishment for cities or their police to arrest or fine people who sleep in public because they have nowhere else to go.
City attorneys say those rulings have led to the growth of homeless encampments in California and the West, and they urged the justices to overturn the 9th Circuit.
Advocates for homeless people said a ruling in favor of Grants Pass would allow cities to make it a crime for poor people to sleep outside.
The justices will meet behind close doors on Thursday to vote on how to decide the case, and they are likely to hand down a ruling late June.