Courthouse Steps Decision: City of Grants Pass, Oregon v. Johnson

Chayila Kleist: Hello and welcome this FedSoc forum webinar Call today, July 2nd, 2024. We're delighted to host a Courthouse Steps Decision program on City of Grant’s Pass, Oregon v. Johnson, which was decided last Friday by the court. My name is Chayila Kleist and I'm an Associate Director of Practice Groups here at the Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call as the Federalist Society takes no position on particular legal or public policy issues. Now in the interest of time, I'll keep my introduction of our guest today brief, but if you'd like to know more, you can access his impressive full [email protected]. Today we are fortunate to have with us Vikrant P. Reddy, who serves as a Senior Fellow at Stand Together, specializing in the area of criminal justice reform. Mr. Reddy previously served as a Senior Policy Analyst at the Texas Public Policy Foundation (TPPF), where he managed the launch of TPPFs national "Right on Crime" Initiative in 2010.

Additionally, he has worked as a Research Assistant at the Cato Institute, as a judicial clerk to the Honorable Gina Benavides in Texas and an attorney in private practice. He's a member of the State Bar of Texas and also an appointee to the US Commission on Civil Rights, Texas State Advisory Committee. Mr. Reddy's research and scholarly opinions have appeared in a range of national media outlets including USA Today, National Review, The Federalist, and others. I'll leave it there, a last comment and then I'll hand it over to Mr. Reddy for a set of opening remarks. If you have any questions throughout the program, please do submit those via the Q&A feature likely found at the bottom of Zoom screen, so we'll be accessible when we get to that extended portion of today's webinar. But that, thank you all for joining us today. Mr. Reddy, the floor is yours.

Vikrant P. Reddy: Thank you. I really appreciate it. I'm going to start, maybe somewhat unusually, by telling a personal story and I promise I'm going somewhere with this, so just bear with me a little bit. I grew up in suburban Fort Worth, Texas, and when I was growing up, one of my quirky little bucket list things was watching the ball drop on New Year's Eve in New York City. I know that's a weird thing to want to do, but I don't know. I was a kid. We grew up watching it. We would stay up, me and my parents' family and I always wanted to see this. I had an opportunity to do this in college. I had this friend who lived in New York, I was going to be in New York around that time, she said, "Look, no real New Yorker would ever think you would do this on New Year's Eve, but if you want to do it, I'll do it with you. Meet me at Penn Station." and she gave me whatever time on December 31st, 2000. So I went and I saw something that day, which I've seen a lot in the years since because I now live in Washington DC and it's kind of a common thing to see, but it was the first time in my life I had ever seen this, and it made a big impression on me, and I strangely think about it all the time. There was a homeless man who was sleeping on the ground inside Penn Station. It was outside the McDonald's or something and his back was up against a pillar and he was just lying there sleeping. He wasn't bothering anybody, he wasn't doing anything, but there's a man sleeping on the ground in the middle of the train station and two police officers walked up to him and they shook him and they said, "You gotta get out of here. You can't do this."

And he said, "Well, where am I supposed to go?" If anybody was in New York that night, December 31st, 2000, you'll know that one of the biggest blizzards that the region had ever seen actually hit the city, and it was just devastating outside these enormous piles of snow that the plows had created. You're still having to just drudge your way through slush to get anywhere. The idea that we would go to Times Square was kind of crazy, but we did it and I just watched this interaction between this man, these two police officers where they said to him, "We don't know where you go, but you got to go." This was kind of an interesting time in the city's history. Rudy Giuliani was the mayor and crime kind of spiraled out of control in New York, and he was elected with the promise that he would solve the crime problem, and part of the way that he went about doing it was that he got tough on things like vagrancy and he and Commissioner Bill Bratton, the police, they got tough on things like homeless guys sleeping on the ground in the middle of Penn Station.

Now to what extent those moves solved the crime problem is hotly debated among criminologists, but there is no doubt that crime declined significantly in New York City in the ensuing years. In fact, there was about a 20 year crime decline after that period. Again, causation and correlation, you'll have to be careful not to confuse the two, but this thorny problem of homelessness and how cities deal with it has been bedeviling for a long time. But one thing that cities have found useful is trying to encourage people to find services and get help by telling them that you cannot sleep in public places. This was New York in late December of 2000, like I said, but now in 2024, we still have these problems all over the country, but they're particularly acute in the American West. And if we have people on this call right now who are from California or Arizona, Colorado, Oregon, even Hawaii, those are the states, I think I just rattled off the five states with the biggest homelessness problems in the United States, they have the largest percentage of their population living homeless.

It's an enormous issue. It's a subject of constant public debate out there, and this case was about that problem, but to be more precise, Justice Gorsuch in his majority opinion says, let's be clear about what the case is trying to decide. The case is not trying to decide what the solution is to homelessness. The case is trying to decide whether or not federal judges are the party that is supposed to make the decision, and the answer he says is emphatically no. So at that, let's get into what the opinion is all about. There's a city of about 38,000 people in Oregon called Grant’s Pass, and Grant’s Pass passed an ordinance that prohibits people from camping outside. There was a opinion in the Ninth Circuit called Martin v. Boise and that case considered whether or not ordinances like this were legal and the Ninth Circuit said these kinds of ordinances that prohibit people from camping outside have got to be struck down because they are violations of the Eighth Amendment. If you have people who have no access to alternative shelter, the idea that you would just punish them is a violation of the Eighth Amendment. It is cruel and unusual.

The court also noted, I thought this was kind of an interesting side point, that three fourths of the beds that were available for homeless people, the shelter beds that were available in Grants Pass were not practically available. This is the language that was used because they had a quote, "a religious atmosphere." but that was kind of an interesting point too. The opinion doesn't dig too deep into all of that, but I thought it was worth noting, but the Ninth Circuit decided that these kinds of ordinances were prohibited. No other circuit has made any such decision, but the ninth Circuit did it. Now, there were counterarguments, there were dissents to the opinion. There was a denial of rehearing en banc and there were dissents from that denial and dissents made very interesting points. They made the observation that, look, the eighth Amendment is really, it's about punishments. It's not about crimes, right? Step one, what you can punish and what the state can punish and not punish, that has nothing to do with the Eighth Amendment. It's step two, once you've punished something, and then once you've criminalized something and you have to decide what kind of punishment is appropriate, that's what the Eighth Amendment is about. It's not about this kind of thing where they've criminalized public encampments.

Another point that was made in some of these dissents is that this is a tool, a tool of public policy, that the court is simply stepping in and nullifying and taking a very important and critical public policy tool away from city council, state legislatures, and it's kind of a inappropriatet violation of the separation of powers. There were a number of people who argued that the court's decision actually made the homelessness problem worse, and in fact, many, many, many amici submitted briefs in this case because there were cities all over the country and certainly all over the west that were saying "If the Ninth Circuit opinion holds and we just cannot use this tool in our public policy tool belt, we are in various serious trouble in our efforts to deal with homelessness." So to get back to the Grant’s Pass ordinance, you have this ordinance which says no public camping.

There is explicit guidance that comes from the city council telling police officers to use a light touch for people who are caught sleeping in a public park or a parking lot or something like that. They're supposed to be administered fines. The fines accumulate. You might at some point be prohibited from entering a public park or something, and of course if you have a lot of unpaid fines or if you violate the restriction against going into the public park that's already been placed upon you, you could go to jail, but incarceration itself is not a direct penalty of the public encampment law, so it really is quite a light touch as the city council had advised its police officers to implement. But the case that becomes really critical as the court starts analyzing Grant’s Pass is a case called Robinson v. California. So Robinson v. California concerned a California law that said that, I want to get this wording correct, "No person may be addicted to the use of narcotics."

That is arguably a status offense. What a status offense means is that you're not criminalizing the actual conduct or the activity, but you're just criminalizing the very act of being something. So I don't know, you might say that people have argued, for example, that, well, this is kind of a complicated argument, but I'll just tell you what people have argued, although I disagree with it. If you say that somebody cannot do a particular activity if they are below a certain age, well that's a status offense because you're criminalizing the fact that they are at some age. Now, I would probably argue that, well, what's really being criminalized there is doing the activity, but in some abstract way, I take the point you have to be very careful about status offenses. So when the court was looking at Robinson v. California, it made the argument that under the Eighth Amendment, you cannot punish status.

It's prohibited. Now, the court was careful to say that what you can do, what is perfectly fine is if somebody say, commits a crime while using drugs, you can punish that and it's not appropriate to say, "Well, I couldn't help myself. I'm a drug addict, therefore I had to break into that car, break into that house or assault that person or mug that person." Those kinds of arguments are not going to play, but simply the act of being addicted to narcotics, that cannot be criminalized. Now, what was really interesting that the court did, I thought this was absolutely fascinating. What the Supreme Court did in Grant's Pass is that they dug into the Robinson case and they said, it is really peculiar that the Supreme Court in 1962, which is when Robinson was decided, decided this case on the basis of the Eighth Amendment because Mr. Robinson himself didn't really make an Eighth Amendment argument.

He had a paragraph in his brief as kind of a throwaway thing, but the core of his argument, what he really spent most of his briefing time on and most of the oral argument time on was the 14th Amendment and he was trying to make a due process argument, not an Eighth Amendment. One, the court for reasons that are completely unclear to me and were unclear to Neil Gorsuch and the majority in this case decided to more or less bypass those 14th Amendment arguments and instead decide the case on the basis of the Eighth Amendment. Again, I don't know why they did that. They did it. Gorsuch says that they're not going to reconsider Robinson in that decision-making here because it's not necessary. He says this question of status offenses, whether or not homelessness is a status that cannot be criminalized is a little bit of a red herring because what the ordinance is prohibiting is camping in public, and technically you don't have to be homeless to camp in public.

I could do it right now, right? Any of us on the call could just walk out, set up a camp in a parking lot, and that would be a public encampment even though we're not homeless. That's kind of a weird hypothetical, but here's a much less weird hypothetical. What if somebody is protesting? What if somebody is angry about some public policy decision and they go and set up encampments like they did at Columbia University and a lot of universities all over the country just a couple of months ago? There are ordinances that get passed, not because they're about a person's status as a homeless individual, but because you cannot be camping in public. That's really what it's about. Gorsuch says you have to focus on that and to start talking and thinking about status offenses really leads you down the wrong analytical road. Now, he's trying to respond to the dissent obviously as he goes through his opinion, and one point that he feels he has to respond to is the dissents argument that you got to understand that these actions are involuntary and people have to sleep.

They don't have a home and they fall asleep in public. That is an involuntary act and you can't criminalize that. Again, that's criminalizing status. Well, to address this, Gorsuch says, look, we've already looked at this question in Powell v. Texas. That was decided in 1968, and that was the case about public drunkenness where Mr. Powell made the argument that being drunk in public was involuntary and beyond his control because he was addicted to alcohol, and the court rejected that argument and said, "No, you just cannot argue that because I have an alcohol problem, I'm permitted to do X, Y, and Z that is otherwise criminally prohibited." That opens the door to an absolute parade of horribles that the court would never be able to get a handle on, and what's really interesting is that that opinion, Powell v. Texas was written, and this is mentioned in the Gorsuch opinion, he doesn't say, "The Supreme Court decided." He says, "Justice Marshall decided", and I think he did that on purpose. Thurgood Marshall is really kind of the lion of progressive jurisprudence in the history of the Supreme Court and for Justice Marshall of all people to have said, yeah, that argument is not going to fly. I was drunk. I'm addicted to alcohol. It's therefore beyond my control. I'm not going to accept that. I think it's very meaningful to note that that is the kind of argument that even Justice Thurgood Marshall was not willing to accept. and I mean I can't prove it, but I suspect that there's a reason that Justice Gorsuch repeatedly names Thurgood Marshall, "Justice Marshall said this, justice Marshall made this argument. Justice Marshall said that", I think it's an important point. I think it's actually a very clever tactic as far as writing the opinion goes. Now, Justice Gorsuch also points out that if that Powell v. Texas case were decided differently - in fact, he points out that Justice Marshall points this out - If it were decided differently, there would be no limiting principle whatsoever on where this would go. The court effectively begins to make criminal law because the court has to start assessing all of these kinds of things that the court is really not in a position to assess.

So for example, if the law says that you can't criminalize homelessness or you can't criminalize a public encampment, if the city is providing fewer available beds than there are homeless people in the city, how do you count the number of homeless people in the city on any given night? How could that possibly be done? I mean, who's able to do that? And by the way, the language notes that we're talking about available beds, what constitutes an appropriately available bed? 

Remember, I noted at the beginning of this opinion that the Ninth Circuit had a problem with the fact that three quarters of the beds in Grant’s Pass had a religious atmosphere and therefore they were unavailable, but we don't even have to get into all that religion and First Amendment material. You could just ask yourself a question like, what if a bed at a homeless shelter says that if you're going to stay here tonight, you have to refrain from smoking, using nicotine? Is that an available bed? Is that inappropriate? I mean, you could make calls about these kinds of things if you're a legislature or if you're a city council. The idea that the federal courts are the place that are best suited to make those kinds of decisions seems very, very badly flawed. So that's Justice Gorsuch's argument about why the public encampment law that that Grants Pass passed is perfectly legitimate, strikes back the Ninth Circuit's argument, but there's also a concurrence. There's a concurrence by Justice Thomas and Justice Thomas concurrences are always fun because he always takes the previous argument and pushes it one step further, and he did it here also where he said, "For what it's worth, that Robinson opinion on status offenses, that's wrong too. We probably should go back and review that opinion."

 If a city or a state does want to criminalize status, I don't actually see anything in my originalist understanding of the materials that would prohibit that, again, could be a good idea, could be a bad idea, but the idea that it's unconstitutional, Justice Thomas sees as misguided. He didn't get any other support for that opinion, but that was his view and that was the crux of his concurrence. Then of course you get to Justice Sotomayor's dissent, joined by Justice Kagan and Justice Jackson. I should note that this was one of these cases that was decided six-three along the traditional ideological lines. I was a little surprised by that. I thought that a justice or two might throw a curveball, but it was a six-three case and you start going into Justice Sotomayor's opinion and I'll have to note I think I get this right and I apologize to the justice if I miss something, but you start reading her dissent and the first seven pages don't contain any citations to court cases or case law.

The material is just all social science research. I think it's very compelling social science. I think it's very interesting. I actually agree with a lot of it and I do think that homelessness is a deep tragedy and I think that it's an awful problem. Like I said, I think about this poor man that I saw in New York City 24 years ago, weirdly a lot of the time, and I think any decent human being would have a lot of compassion and empathy for the problem of homelessness, but that's not law. We're trying to figure out the legal issue here and the legal issue as Justice Gorsuch noted, is not what the answer to homelessness is. It is who gets to make those decisions? Justice Sotomayor says, look, the argument that Justice Gorsuch is making that you can just kind of avoid the status offense problem because it's not really about status, it's just about the idea of camping in public is incorrect, and she does kind of a two part analysis to explain why she thinks it's incorrect, and I thought this was kind of interesting.

She says, you can look at the original, the legislative purpose behind the ordinance and you can look at the text. The reason I think this is so fascinating is because we're now digging into the kinds of traditional things we talk a lot about in the Federalist Society about how you interpret statutes, how you interpret the Constitution, and she's trying to pull those interpretive methods in to make her arguments and personally I don't think that the arguments were that strong, but of course all of you can be the judge. First, she talks about the question of purpose. She says, just go back and look at what the city council was debating in Grants Pass whenever they passed this law. Was the city council talking about college kids who were protesting? Was it talking about people who, for whatever reason in my fanciful hypothetical, decide to just leave their home, go outside and build a camp on the sidewalk?

Was it about people who were traveling from point A to point B and decided for the night rather than getting a hotel, I'm going to sleep on the sidewalk? No, they weren't talking about those things. What they were talking and debating about was the question of vagrancy. They were talking about the question of homelessness. That's what they were trying to figure out, and she says, if you just go and look at legislative intent and legislative purpose, that stares you pretty clear in the face. Now, I have been of the view, and I've said this on calls like this for the Federalist Society, many many times I've been of the view which I was coached in by reading Justice Scalia for years and years and years, that legislative intent and legislative purpose are not the best way to interpret a statute and they take you down false paths. You really need to focus on the text and original meaning of words in the text. Now the justice thinks that she has an argument there too. I'm not quite sure that she does. She says, just look at the words where they talk about the language that is used in the ordinance where it talks about tents and the kinds of items that are used in an encampment. She says, this all gets at the issue of homelessness. I have to say the argument failed for me.

A college kid who's protesting something at Columbia University can have a tent too or a person who's traveling and decides not to get a hotel for the night. They can have a tent too. It's not obvious to me that the words that are used when you look at the text get at the issue of homelessness. Again, one's mileage may vary, but I didn't see it and for what it's worth, she was unable to convince six of her colleagues. She convinced Justice Kagan and Justice Jackson, but not the other six, so that's the case six to three. I think that there's a huge sigh of relief from certainly cities located in the Ninth Circuit and really probably cities all over the country that the Supreme Court said they can continue to use this tool if you feel that it helps you address the homelessness problem to tell people in your town they can't be building a public encampment. You've got to go and find help. I don't know where, but go and find it. If you think that that helps, then by all means you can still do it for what it's worth, you don't have to have a law like that.

This is left at the discretion of individual communities. I think if anybody wants to know my opinion, which I've kind of sprinkled in here and there throughout my little presentation today, I think the court probably got it right here and I think that to do otherwise would've been just utterly impractical. Like Justice Gorsuch wrote the idea that you could count the number of homeless people on any given night and then calculate whether or not there are more or less than the number of available beds. This just gets very, very difficult. It is not what courts are there for. They're difficult problems, but these are the kinds of problems that we have city councils and legislatures to try and solve. I wish I knew the solution to homelessness and I would give it on this call but I don't, but what I do know is that it is not the job of the federal courts to try and solve it and in that regard I think that the court got this one right. At this point. I would be happy to answer any questions.

Chayila Kleist: Thank you so much. Really appreciate that summary of the case, how we got here and the decision and the various opinions. I will issue the reminder to our audience that if you have questions, you are welcome to submit those via the Q&A feature. We already have one from the audience, so I'd love to direct that your way. They ask why this was decided under the Eighth and 14th Amendments and whether it should have been addressed under the Ninth Amendment.

Vikrant P. Reddy: That's an interesting question. I don't know and Justice Gorsuch doesn't know either. He says, I don't understand. He literally writes in his majority opinion, "I don't understand why Robinson was decided using the Eighth Amendment rather than the 14th." I thought it was really fascinating that the court not just read a precedent. Obviously the court reads precedents to try and make its decision, but it read the precedent and then it went back and read the briefing behind that precedent to try and figure out what arguments were made that led to the court making the call that it did. Maybe that kind of thing happens all the time. I feel like it probably doesn't, but it was a really, maybe that's the reason it took so long to issue this thing and it came at the very, very end of the court term as everybody knows, I have no idea why the court decided to adopt this Eighth Amendment argument, which again, Mr. Robinson had only a paragraph's worth of briefing on, the state apparently barely responded to it, and yet the 1962 court found it oddly compelling. I don't know why.

Chayila Kleist: Got it. On that, although it's not explicitly overturned, does the way that Robinson was treated both in the majority and in Justice Thomas's concurrence mean that Robinson is still good precedent, precedent that's worth citing or how would you argue Robinson should be treated moving forward given how it was addressed in this opinion?

Vikrant P. Reddy: That's a good question and it's one that Justice Gorsuch explicitly addresses and he says, "Look, Robinson is still good law. We are not going to reconsider it here. I suspect that he might want to and maybe if there's a future case, when there's an opportunity to do so, he will, but it wasn't necessary to handle this case and we all know how Justice Thomas feels about it.

Chayila Kleist: Fair enough. On the due process issue, the dissent mentions that the due process question still is an open question and wasn't addressed by the majority opinion. Was it raised in briefing or oral argument and might that slash how might that issue raise its head in future litigation on this issue?

Vikrant P. Reddy: So the answer to the first part of your question is sadly, I don't know. Unlike Justice Gorsuch and his law clerks, I didn't go back and read the briefs at that level of detail. Actually, I did read them when this case was first argued several months ago, but over the weekend I'm afraid I didn't read them. I don't recall whether or not that argument was as far as what it means going forward, I guess I could imagine repeat litigation over all kinds of different, all sorts of different laws that jurisdictions passed to try and get at the problem of homelessness, which like I said is an extraordinary problem particularly out in the West. This is real laboratories of democracy stuff. People are trying all kinds of different ideas to get at the homelessness issue. This has nothing to do with I would think with any kind of litigation, but I was reading a paper over the weekend about just direct payments that were given in Colorado to homeless individuals.

I think people were just given a thousand dollars a month and they were trying to figure out whether or not this would reduce the number of people in Colorado who are homeless. The answer is it didn't by the way, but that's a social science debate for some other time. It's not a legal debate. The point I'm trying to make here is that we are trying all kinds of different things to get at this problem and to the extent that some of those things are going to be sticks rather than carrots, I think they're going to be challenged in the courts, but I have a strong sense that the Supreme Court is going to give, as long as we have this current court composition, they're going to give cities and communities a wide latitude in trying to decide what to do to maintain public order in their cities.

Chayila Kleist: Fair enough. On the topic of what's in the dissent, the dissent mentions the excessive fines argument, which I believe is raised in some of the amicus briefing, although I wouldn't want to be quoted on that, but wasn't addressed necessarily in the majority opinion. Is there a potential we could see this conversation come back around on the excessive fines issue either at the lower court as this case is remanded or in future cases?

Vikrant P. Reddy: It's interesting, so let me back up and say something about the idea of fines in general. Somebody, I think it was Gorsuch. Yeah, I think it was in the majority opinion, Gorsuch was saying We are trying to assess whether or not the Eighth Amendment applies here and the Eighth Amendment is about punishments and he says, "Look, the punishments in question are fines and the idea that fines are 'cruel and unusual' is utterly absurd. Fines are the most common punishment used in all of criminal justice. They always have been. They are right now in America, they probably are all over the world." He cites a Justice Thomas opinion in an old case called Tims versus Indiana, which I actually think I did a FedSoc Forum on, Timbs v. Indiana where Justice Thomas calls fines "the drudge horse of the American criminal justice system".

Fines are certainly not cruel and unusual. Now there's this question of whether or not fines at a certain point become so excessive that they become cruel and unusual. I don't know what to say about that. I know that was discussed in Timbs v. Indiana many, many years ago, but I'm afraid I just don't recall how the court analyzed the issue. It was a Justice Ginsburg opinion as I recall, and I'd encourage people who are interested in this issue to go and look it up. There are a lot of fascinating policy arguments that come out of the question of fines and whether or not they're excessive. One really big one is this idea, some people on the call may be familiar with this, the idea of day fines, which is a fine where you kind of tailor the fine so that it's not a flat amount, but that it's a percentage of a person's wealth because you issue a particular fine to me and you issue it to Elon Musk, it's going to hurt me a lot more than it hurts him, and so the only way to get some kind of change in behavior, this is the theory and it's used in some Nordic countries, is to try and that's a hard problem too, to try and figure out what the person's wealth is. Making those calculations is very difficult by the way, but you try and make that calculation and you establish the find that way. Most American jurisdictions have not tinkered with that kind of thing, but who knows they could in the future and I guarantee you it would spawn all sorts of litigation.

Chayila Kleist: Thank you. Another audience question asks about the dissent and the potential philosophical difference between the justices that sound onto that vs. the justices and the majority. I know you touched on a little bit in your summary, but is there anything worth noting in the differences of philosophy or is it more a difference in understanding of the practical effects of the laws or the regulations?

Vikrant P. Reddy: I want to answer this question as Justice Sotomayor would answer it, and I think she would say both. To be fair, I think she'd say, "Look, philosophy matters here", but maybe practically speaking in her mind, maybe in her mind, if you take something like the ordinance in Grants Pass and you say an ordinance like this is impermissible, it would spur the legislators, the folks on the city council to pour more resources into getting the appropriate services to the homeless population in that city. Maybe that's the idea of the practical effect that she has in mind. I don't know, but I'm doing my best not to build a straw man and assess or analyze what it is that she would say if she were here.

Chayila Kleist: Got it. Thank you. What impact can we see in light of this case on the way Eighth Amendment challenges specifically regarding generally applicable statutes attempting to address homelessness could be brought moving forward?

Vikrant P. Reddy: That's a good question. I think for sure the argument that these kinds of laws are cruel and unusual is simply not going to fly. The court was pretty clear about that and really it was a very eccentric argument to begin with. The Ninth Circuit is the only circuit that accepted this argument. I mean every other place in America, every other circuit in America said, no, that's just not really what the eighth amendment is about. Gorsuch has a section in his opinion where he says, in our constitution, there's all sorts of language about the kinds of things that cannot be criminalized. The First Amendment is the most obvious example. There's certain kinds of speech that cannot be criminalized. Second Amendment, there's parts of the Fourth Amendment. There's the Constitution is littered with this kind of stuff. It's very, very important, but that's not what the eighth Amendment is about.

The Eighth Amendment, and this is the way he phrases it is about step two. It's about what happens after you've criminalized something and now you're attempting to punish it. It just seems like it's a very weak argument. I was about to say with the current composition of the court, but it's not even about the current composition of the court. Keep in mind that all these other circuits have heard similar kinds of arguments and have dismissed them. I just think that for whatever reason, you got a very ideologically peculiar panel of the ninth Circuit that was hearing this Martin case and then Grants Pass, and that's probably all that happened there. I think it's going to be very difficult to find a lot of judges who accept those kinds of arguments moving forward.

Chayila Kleist: Got it. We have an audience comment and question that gets to the difference between Grant's Pass and its predecessor Martin and the criminal versus civil question, which also came up to my understanding between the majority opinion and then the dissent. Could you give a little bit more commentary on the argument concerning is this actually criminalizing conduct or is it civil in nature?

Vikrant P. Reddy: Yeah. I don't remember very clearly, but I want to say that Justice Thomas had a little bit of this in his concurrence where he was saying that these are civil fines often now you can make the argument, I noted this, that as civil fines begin to accumulate, if you simply ignore them, well then you've ventured into criminal territory, and so it does get blurry where civil and criminal meet, but that's not new, right? That's not particular to this case. There are all sorts of areas in American life where you can get civil fines and if you just choose to ignore them, you have a criminal issue on your hand. There's nothing new about that, and so yeah, the idea that all of a sudden you've triggered this very difficult or analytically complicated criminal law question, I don't quite see it.

Chayila Kleist: Fair enough. Another audience question goes a little bit to the practical effects of these sorts of regulations and the briefing surrounding this argument, which was heavily cited in all the opinions. Did the city or other amici put forward evidence concerning how this or other statutes result in those who are homeless seeking available shelter or just that it decreased the number of people sleeping in public spaces?

Vikrant P. Reddy: Well, some amici made the argument that it was increasing the number of people in public places. It had become very difficult for communities in the Ninth Circuit to understand what kinds of tools they had to get at the homelessness problem. I mean, if you cannot walk up to the guy in the train station and say, look, you cannot be sleeping here, then presumably a lot of people are going to decide, oh, it's okay to just go sleep on the ground in the train station. Maybe that's an unfair assumption, but I don't think it is. It makes perfect sense to me that if certain kinds of conduct that the community doesn't want are not punished, then you can get more of that same kind of conduct. We have a lot of, I don't know, big think social science debates over whether or not that's true these days, but I think they're all really kind of absurd.

It seems to me very obvious that if you don't punish a particular kind of behavior that you don't want, you're going to get more of that kind of behavior. Now, that doesn't end the question for legislatures. I mean, the kinds of behaviors that should and shouldn't be punished and the kinds of punishments that are appropriate and all these questions are relevant, but the idea that you just shouldn't punish certain kinds of things that the community doesn't want, certain antisocial behaviors, I don't know. I find that a little ludicrous, and I think we've probably, especially if you live out in the west in some of these very progressive jurisdictions, I don't mean to besmirch San Francisco and Portland and Seattle, but they have been dealing with these problems in a very significant way for many, many years now, and I think it's because they have adopted some of these unusual progressive theories. I lived for a long time in Austin, Texas, which adopted some of these theories too, and you watch the homelessness problem kind of spiral out of control for a few years there.

Chayila Kleist: Got it. Moving to the next question, what other than the impact for the parties in the case itself could be the immediate impact of this decision? Are there other cases that are currently ongoing that could be affected by this ruling and what does it mean for the other cities or jurisdictions that were subject to Martin Injunctions?

Vikrant P. Reddy: Yeah. The immediate impact is that all these other cities are going to breathe a sigh of relief because they feel like it's fine now to go and head over to the public encampment and tell the folks there, "Listen, you got to go find a place to sleep", now, where are those people going to go? I don't know, and this goes back to that personal story that I told about this man in the blizzard in New York in 2000. I don't know where they go. I feel that we're probably a little underfunded in this space in the United States that we probably need to have more options for mental health and for drug addiction and beds for these kinds of things. I also think in a lot of ways that lack of housing is a problem because of regulators who are not letting us build in a lot of places.

I mean that's kind of part of the public policy issue here. I also think that the nonprofit space obviously has a role to play. I found it a little odd, again, I keep coming back to this, but I did find it really weird that the Ninth Circuit had a problem with beds that had a religious atmosphere and therefore said that the beds were unavailable. It is just kind of a practical reality that a lot of the people who are most passionate about this issue and who get involved, they kind of come out of the religious institutions and there are a lot of churches and synagogues and temples and things that get involved in doing what they can to help the homeless population. I don't think that's a bad thing personally.

What I would love to see talking about all of these issues that I just rattled off some issues in the nonprofit space and in public policy and everything, what I would love is for this case to get evermore attention because public awareness of these problems gets more people involved. Unfortunately, Chayila, as we were talking about just before I jumped on this call, it's going to be hard for the Grants Pass case to get a lot of attention because a lot of people who follow the Supreme Court are right now reading the Trump immunity case and Loper Bright and some of the other massive blockbuster cases that came down at the exact same time, and this case has been a little bit swamped. I think it's unfortunate because I think it really was quite an important case this term.

Chayila Kleist: Thank you. And continuing on that though, perhaps you've just addressed it, are there other areas of law or industries that should be paying attention to the indirect effects of this case? Obviously, there's some very specific ramifications for the jurisdictions that have similar regulations or laws, but are there more indirect effects we could be seeing coming out of this?

Vikrant P. Reddy: That's a good question. I don't know. I talked a moment ago about the very onerous regulations that prevent us from building housing in the United States. For example, if I were somebody in the building industry and I were trying to make an argument to my city about why they needed to reduce these excessive levels of review before I was able to put up an apartment building, I would point to a case like this and I would say, "Look, people need housing, and the Supreme Court has said, you can't camp in public. You got to go somewhere. We got to build those somewheres." Now, that may mean homeless shelters. It may just mean significantly more affordable housing options for some people. I don't know. It just means a whole cluster of things. There's just, like I said, a giant basket of solutions that we probably need to be experimenting with in order to get a handle on the homelessness problem. To the extent that we're prohibited from experimenting with any of these solutions, I think they're a huge problem.

Chayila Kleist: Got it. Well, now that we have a decision, what are the questions that remain unanswered, if any?

Vikrant P. Reddy: The biggest question of all, which I keep coming back to, which is what do you do about homelessness? Like I said, the case was not about what to do about it. It was about who gets to make the call. The opinion was pretty clear. It was six to three. It is the people's elected representatives through city councils and state legislatures that get to make the decisions, but what those policy decisions should be is the real challenge here, and unfortunately we've been working on this problem for centuries really, and in some ways it's gotten worse in recent decades and we still don't have good options, but what we want to do I think, is continue to experiment and let jurisdictions experiment and not tie their hands with legal doctrines that prevent public policy experimentation.

Chayila Kleist: Got it. Continuing on that questions that remain open, we have an audience member who comes back to this Ninth Amendment question and asks whether an argument that camping on public land constitutes a right retained by the people might have more success as an argument before the Supreme Court.

Vikrant P. Reddy: I think it is a question that, or it's an argument that it's hard to find a limiting principle for, so for example, I think, I cannot remember if it was Justice Gorsuch himself who made this argument in the opinion or if he made it at oral argument or if it was some academic I was talking to who made this point. It's a little gross, but it has to be said if sleep is a biological necessity and you have that right under whatever amendment, the Eighth, the 14th, the Ninth, what about public defecation? Is that something that cities are not allowed to criminalize? I mean, you just kind of start to go down a logic train here that becomes a little absurd. There is no limiting principle that's being identified. Cities have to be able to criminalize certain kinds of antisocial behaviors that contribute to pervasive disorder in their communities. That doesn't seem unreasonable to me, and it didn't seem unreasonable to six justices on the court.

Chayila Kleist: Fair enough. Well, I think that's all the questions I have and I'm not seeing any more from our audience, so are there final thoughts you give on this case on its impacts on what we should be looking for moving forward?

Vikrant P. Reddy: Maybe I'll just say one last thing, which is that my interest in this case comes from the fact that a lot of my work is focused on criminal law and criminal justice reform, and I do think of myself as a criminal justice reformer, although it's become a little bit of a troublesome phrase in recent years because our friends on the left have adopted some really wacky theories that make you shy away from it. But I think there are a lot of problems in American criminal justice. I do think there are a lot of problems in American punishment that we need to resolve, but we have to resolve them through the proper channels. These are decisions that have to be made by legislatures and by city councils. The role of the federal courts and these kinds of questions, it's very, very small and we have to be careful not to overburden them by putting these kinds of problems in the hands of the federal court. I think that the dissent's argument would have done that. I think it was a mistake legally and also a huge mistake practically, so I think the court got it right, but that doesn't, I may have struck a tone of an old scold today talking about how cities have to be allowed to preserve a certain sense of order and law in their communities. I do believe all that, but I don't think that's inconsistent with caring about problems in the criminal justice system and caring about fundamental constitutional rights. I think all of those things can certainly go together.

Chayila Kleist: Got it. Well, thank you so much. Really appreciate you spending the time here and giving us sort of this breakdown of what is a really important case amongst a series of really important cases this term, and thanks also to our audience for joining and participating. We welcome listener feedback by email at [email protected] and as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, I know we're not quite to the top of the hour, but we can wrap early and give everybody's back section of their afternoons so we can adjourn. Thanks so much.