The U.S. Supreme Court has agreed to review an Oregon case concerning how cities treat homeless people sleeping outdoors — and may be poised to issue a decision with wide-reaching implications, according to Minnesota legal experts.
Up for consideration is a challenge to a 2018 Ninth Circuit Court of Appeals ruling — and a related 2022 court decision — that found it is "cruel and unusual" to arrest or ticket homeless people camping in public unless they have access to shelter. Those decisions have blocked West Coast cities in the Ninth Circuit from enforcing laws prohibiting unsanctioned camping.
Now, however, the court has agreed to hear a challenge from the city of Grants Pass, Ore., and other cities that want to be able to enforce camping restrictions. As the parties prepare their arguments for the court — which will take up the case later this year — advocacy groups and legal experts here and elsewhere are contemplating how the high court might rule, and how it will affect local discussions on encampments.
The odds of taking up a case
The Supreme Court gets about 8,000 requests a year, but chooses to review just 1% of them.
Once justices accept a case, they reverse the lower court decision about 80% of the time, said Prof. David Schultz, a University of Minnesota visiting professor of law. And when it comes to the Ninth Circuit, historically more liberal than the Supreme Court, the reversal rate is closer to 90%.
"Knowing what we know from a political science analysis of looking at what the Supreme Court does," Schultz said, "odds are that at least four justices [agreed to review the case] with the belief that they want to reverse and they think they have the votes to be able to reverse."
Some people would argue that the current Supreme Court, which overturned Roe v. Wade in 2022, takes cases in order to further the agenda of the conservative justices, said Michael Steenson, a constitutional law professor at Mitchell Hamline School of Law. But Steenson noted that the Supreme Court often takes up cases when there's confusion over the way lower courts are interpreting federal law on high-stakes issues.
The encampment cases raise interesting questions about the reach of the Eighth Amendment's prohibition on cruel and unusual punishment, he said. There is disagreement about whether "punishment" refers to criminal or civil penalties, and whether being homeless or addicted to drugs stems from a person's "status" — which the Supreme Court ruled in 1962 cannot be punished — or from "conduct," which several federal courts of appeal believe can be punished.
"Some of these [laws] just seem mean-spirited; if you're going to camp, you can't have pillows, can't have blankets, or you'll be cited for that," said Steenson.
But the question that the Supreme Court will have to answer is whether it's cruel and unusual to issue those citations, and in Steenson's opinion, a largely conservative court won't interpret the Eighth Amendment that way.
The court's decision could play out in a variety of ways, with differing impacts for cities like Minneapolis facing significant challenges with encampments.
The Supreme Court could affirm the Ninth Circuit and tell cities across the nation that they must find sufficient shelter for homeless people if they want to get rid of their encampments. Or, they could reverse and give cities the power to arrest and fine homeless people with nowhere else to go.
In between those possibilities, there are off-ramps, said William Knight, a civil rights lawyer with the National Homelessness Law Center.
One option: The court could draw a line between civil and criminal punishment by allowing fines for camping but continuing to prohibit locking up homeless people to clear the nation's streets.
Knight believes that scenario, where the Supreme Court overturns the Oregon ruling, wouldn't solve cities' problems.
"It means that municipalities around the country will be free to return to using police and prosecutors and jail cells to invisibilize homelessness, which is an expensive way to make homelessness worse," he said.