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Commentary By Judge Glock, Ilya Shapiro

MI Responds: SOTUS Oral Arguments in Grants Pass v. Johnson

Governance Supreme Court

Today, the Supreme Court heard oral arguments in the case Grants Pass v. Johnson. Many court-watchers expect Grants Pass to be reversed and with it, the previous Ninth Circuit decision on which it was based, Boise v. Martin—a decision that has led to less enforcement and more street homelessness. Manhattan Institute scholars offer the following analysis: 

“The Grants Pass argument at the Supreme Court today demonstrated the impossible problems created by the Ninth Circuit's ruling. While the homeless advocates claimed that cities must either allow people to camp outside or provide shelter for almost anyone who lives in or moves to a city, many of the justices expressed skepticism about how such mandates would work in practice and why the Supreme Court should manage homeless policies for cities across the whole nation. Some justices pointed out it was difficult or impossible to tell when or where or why someone became or stayed homeless, and therefore police and courts would have a very hard time determining when someone had viable alternatives. Hopefully, the Supreme Court will take this opportunity to strike down the Ninth Circuit's ruling and return discretion to cities about how to deal with this difficult problem.”

Judge Glock is director of research and senior fellow at the Manhattan Institute.

“The justices clearly struggled with how to draw the line between status and conduct—the latter can be regulated, the former can’t—but there was no appetite to insert judges as ‘superintendents’ of municipal homeless policies. That’s a good thing and it means the Ninth Circuit’s expansive and novel Eighth Amendment ruling will be reversed. There will no doubt still be room for litigation case-by-case involving claims of due process and necessity (to camp or sleep outside), but the Supreme Court is poised to remove blanket barriers on policies of the sort Grants Pass is attempting to implement here.”

Ilya Shapiro is director of constitutional studies and senior fellow at the Manhattan Institute.

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