As we said repeatedly today, we have had a pretty heavy load of blockbuster cases, today. We saw the Supreme Court basically demolish a huge part of the administrative state today (what many call the Deep State) and we saw the Supreme Court end the prosecutions and vacate the convictions of a great many of January 6 defendants, and now we get to the third big case of the day: The Supreme Court said that states can in fact remove homeless encampments without violating the Eighth Amendment.
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That’s not a typo. The question is about the Eighth Amendment, which reads as follows:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
And if you are confused as to what this has to do with whether or not a city can remove homeless encampments, we don’t blame you. Give us a minute. We will explain this entire dumb thing, eventually.
But let’s start with the decision itself. Professor Turley was on duty and announced the decision and linked to it the moment it came out:
Basically, the facts are these. The city of Grants Pass, Oregon, (that’s how it is spelled) has laws that prohibit homeless people from sleeping on public property. The Plaintiffs are homeless people who have never had these laws enforced against them but nonetheless they filed a class action suit on behalf of all homeless persons in the area. They argued, in part, that it was cruel and unusual punishment to punish a person for sleeping on public property at all if they are homeless. They argued that because there aren’t enough shelters and they have nowhere else to go, so the city was basically making it a crime to be homeless and then eventually fall asleep. So, the argument goes, they can’t help sleeping on public property, therefore to punish them at all is cruel and unusual. Based on that logic, the district court issued an injunction preventing the enforcement of these laws.
This was all based on a prior Ninth Circuit decision (Martin v. Boise, 920 F. 3d 584 (9th Cir. 2019)) that pretty much held the same thing five years ago, and has been wreaking havoc in that jurisdiction ever since. The Ninth Circuit is full of leftist activist loons who are not shy about imposing their leftist values on the people in their circuit. They count Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington in its domain. It is the largest circuit in America physically and in terms of population. Frankly, it is too large, and should be split into at least two different circuits.
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In any case, when you hear all those stories about too many homeless on the streets in California or any of the other states on that list, this is part of the reason why. Ever since Martin, similar injunctions have spread all over that region, handcuffing what local officials could do about homelessness in their community. Of course, all of these homeless people all over the place is just fine and dandy with many leftists, so even without these court orders, there would still be problems. But this decision positively stops the states in the Ninth Circuit from solving the problem, even if they want to.
The Supreme Court let this nonsense go on for about five years. We are honestly at a loss why they waited that long. Even if they were waiting for a 6-to-3 conservative majority, we had that by the end of 2020—so why let it go on? Maybe the thought was that they wanted people living there to get thoroughly sick of this rule before they reversed it, so they would be glad to see it go. Who knows?
In any case, the Supreme Court did reverse it today, saying that laws that prohibit all people—homeless or not—from sleeping on public property doesn’t violate the Eighth Amendment. And you might be tempted to say to that ‘Duh! Of course, the Eighth Amendment doesn’t prohibit such laws, because it’s about how severe a punishment should be, not whether or not a certain act would be punished.’
And that is the correct and plain reading of the language of the amendment, but there was one Supreme Court precedent that did something different: Robinson v. California, 370 U. S. 660 (1962). In that case, they confronted a California law that made it a crime to be a drug addict and the Supreme Court decided that was unfair. After all, the Warrant Court reasoned, a person who hadn’t used drugs for years could still be called an addict. Indeed, since a person could theoretically become addicted to a drug because they were exposed to it by accident or otherwise against their will, in some cases a person might be have had no control over whether or not they were an addict. So the Supreme Court reasoned that punishing a person at all for being an addict was cruel and unusual, and therefore violated the Eighth Amendment.
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And the interesting thing is that the Supreme Court didn’t overturn Robinson, but it strongly, strongly suggested it should be overturned. Writing for the Court, Justice Gorsuch argued that the parties in Robinson themselves hadn’t been arguing that novel Eighth Amendment theory—instead they were arguing that this anti-addict law violated due process and only brought up the Eighth Amendment on the theory that forcing the defendant to go cold turkey would be inhuman punishment. Furthermore, this precedent had never been cited to strike down a single other criminal law, suggesting it was an outlier. All of that is a strong signal that Robinson is extremely dubious as a precedent, and probably should be overturned.
So, the Supreme Court refused to say that this violated the Eight Amendment because unlike Robinson, the law wasn’t criminalizing a mere status, but the decision to sleep on public land.
Naturally there were reactions:
That’s a huge theme this week: Taking away the excuses politicians use to justify their inaction.
The cut off text:
This is a game changer for California & SF/LA as it now allows governments to clean up parks & beaches etc.
While these actions may now be legal, it’s important to remember that we must always act with dignity and compassion. However, that compassion has boundaries, and destroying public spaces & preventing the public from safely enjoying spaces it owns is NOT compassionate to everyone else.
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The cut off text:
The ruling impacts far-left prohibitions on cities to enact bans on homeless encampments, which are now basically unconstitutional—and overrules activist judges in the 9th Circuit who ruled in 2018 that cities weren’t allowed to ban homeless camps.
Cities like Seattle, Portland, San Francisco, Los Angeles and DC could soon be radically changed as cities will be permitted to ban these homeless encampments, finally.
No more homeless means far less crime, so cities will be a lot safer.
But only if the voters ditch progressive politicians.
We also heard from the mayor of Boise, Idaho, where all of this nonsense started:
We’ll see what tune she sings when homeless people flock to Boise because of their relatively lax policies.
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Literally not a word of it explains why the Eighth Amendment should be read this way. We can see the argument that Robinson would have been correct under the Due Process Clause—at least as applied to a person who didn’t currently use drugs. But we can’t understand how you claim the Eighth Amendment allows the Courts to decide arbitrarily what can and can’t be a crime.
And returning a moment to Turley’s thread, he talks about Sotomayor being so big mad she read her dissent from the bench this morning:
The cut off text:
For those who insist that stare decisis is under attack, we often forget that it is often honored in the breach by both sides. I have never subscribed to the inviolate elements to stare decisis…
Stare decisis is legal Latin for ‘to stand by things decided’ and it is used as shorthand for the idea of respecting precedent. But Gorsuch didn’t overturn Robinson. He literally said, paraphrase: ‘Even if Robinson is good law, it doesn’t compel us to rule against the city in this case.’ Saying addiction cannot be a crime doesn’t lead you automatically to say ‘and therefore, we can’t prohibit homeless people from sleeping on public property.’ So, Sotomayor’s complaint isn’t that precedent is not being respected, but rather that it is not being extended.
Turley goes on:
Which is also a valid point. Precedent is sacrosanct, until it isn’t. For our money. we tend to think the precedents where the Supreme Court was effectively amending the Constitution without bothering to go through the procedures set out in Article V deserve pretty much no respect.
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We also heard from London Breed’s opponent:
To be fair, his term seemed to end in 2018, a year before the Ninth Circuit started tying mayors’ hands in Martin.
It was a ridiculous reading of the Eighth Amendment. If you can’t admit that, Jesse, we can’t help you.
Yes, and deservedly so.
Yes, that’s right, the new term the left loves is ‘unhoused.’ Of course, a rational person might ask ‘what is wrong with the prior term, homeless? Why does the left constantly have to come up with new terms for familiar concepts and things?’
We think that part of it is a bit of in-group signaling. By constantly switching to the latest term, you are demonstrating that you are a leftist, you are one of them, you keep up with whatever the new nomenclature is and you use it, gosh darn it, so everyone knows you are part of the good guy team. So, while there was nothing wrong with the term ‘homeless,’ you need to use ‘unhoused’ so everyone knows you are a good little leftist and are down for whatever the latest thing is.
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At least that is our theory, we could be wrong.
Finally, Will Chamberlin takes a moment to appreciate what a great run we have had recently:
Kurt Schlichter goes back further:
Laughs. As someone said when Roe v. Wade was overturned: We haven’t seen Democrats so angry since we took away their slaves.