At the end of its 2023-24 term, the U.S. Supreme Court issued several divided decisions protecting corporations, financiers, and former presidents from regulation and prosecution, often through expansive and unprecedented readings of the U.S. Constitution. But the conservative majority had something else in store for homeless individuals who similarly sought relief from alleged government overreach.

In City of Grants Pass, Oregon v. Johnson, the Court ruled 6-3 that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not prevent cities from penalizing their homeless residents for sleeping on public property, even when no shelter space is available and they have nowhere else to go.

The decision gives the green light to municipal efforts to banish unhoused people from their midst—as Grants Pass tried to do, in the words of its city council president, by making life “uncomfortable enough for them in our city” that “they will want to move on down the road.”

At issue in Grants Pass was a set of ordinances that effectively outlawed the status of being homeless, making it an offense to occupy public property as “a temporary place to live” with “material used for bedding purposes.” Resting on sidewalks or in parks with merely a blanket to protect against the elements could trigger hundreds of dollars in civil fines, as well as jail time for repeat “offenders.”

Grants Pass removes the Cruel and Unusual Punishments Clause as a barrier to such measures. Advocates for individuals experiencing homelessness must now seek out new strategies to stem the rising tide of ordinances that penalize people for lacking shelter.

The decision also takes another step toward the conservative majority’s evident goal of reducing the Punishments Clause to a historical relic, serving no function besides forbidding medieval torture.

Although waving the banner of originalism, Justice Neil Gorsuch’s opinion for the Court does not seriously engage with the Eighth Amendment’s history or the varied strands of precedent supporting the challenge to Grants Pass’s ordinances. Instead, the opinion is transparent about what drives its outcome: the perceived need to give municipalities a freer hand in curtailing the growth of homeless encampments, along with the perception that intrusive court injunctions had empowered judges to dictate homelessness policy.

The backdrop here is the nation’s escalating housing crisis, especially acute in large cities and Western states where skyrocketing prices have dried up affordable options. The more immediate legal catalyst was the U.S. Court of Appeals for the Ninth Circuit’s decision in Martin v. Boise, which held that governments may not criminally punish people for sleeping on public property if they have no shelter available. Martin was later applied in various class-wide injunctions blocking enforcement of punitive “anti-camping” ordinances.

These injunctions still left cities free to clear encampments, prohibit structures like tents, and regulate safety hazards. Nevertheless, a large number of cities and states filed amicus briefs urging the Supreme Court to intervene, asserting that the injunctions unduly tied their hands and were to blame for the much-publicized spread of dense encampments in cities like San Francisco.

Justice Gorsuch’s opinion spends pages sympathetically channeling these briefs, leaving it to Justice Sonia Sotomayor’s dissent to represent the perspective of homeless plaintiffs like Debra Blake, “disabled, unemployed, and elderly,” who owed Grants Pass more than $5,000 in fines for sleeping outside when she had nowhere else to go.

A major criticism of the Ninth Circuit injunctions was the simple metric they used to protect the “involuntarily” homeless. Under Martin, public-camping bans could not be enforced if a jurisdiction had more homeless individuals than available shelter beds. (Grants Pass has at least 600 homeless residents but fewer than 140 beds in its lone shelter.) The United States as amicus defended the Ninth Circuit’s constitutional analysis but argued that its injunctive relief was overbroad.

Eschewing that middle ground, the majority held the Punishments Clause to be entirely inapplicable. In doing so, it dialed back some of its precedents and brushed aside others.

The Ninth Circuit’s opinions rested on Robinson v. California, a 1962 Supreme Court decision striking down a state law that criminalized being a drug addict. Robinson held it cruel and unusual to punish a status, especially one that could be acquired involuntarily. Under Robinson, the Ninth Circuit reasoned, governments may not punish “conduct that is an unavoidable consequence of being homeless” such as “sleeping on the streets.”

Grants Pass did not overrule Robinson (as Justice Clarence Thomas urged in a concurrence), but it firmly relegated that decision to a one-off, relevant only to laws punishing pure status. So, while cities may not punish the status of being homeless, they now may punish conduct that is an inevitable result of being homeless.

To get there, the majority inaccurately framed the dispute in Grants Pass. It described the plaintiffs as trying to conscript the Punishments Clause—which regulates what happens after conviction—to limit what behavior can be deemed a crime. But the plaintiffs never disputed that cities may criminalize public camping and enforce those prohibitions as a general matter. Their sole argument was that the Eighth Amendment forbids punishing people who literally cannot avoid violations because they have nowhere else to go.

To be sure, Robinson has sometimes been described as placing “substantive limits on what can be made criminal.” More often, though, the Court has portrayed it as implementing the Eighth Amendment’s well-established rule against punishment “grossly disproportionate to the severity of the crime.” As Robinson itself explained, “even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

The Grants Pass plaintiffs argued similarly that even modest fines and short jail terms exceed the culpability of offenders who sleep outside because they have no other choice. The majority simply ignored these proportionality arguments and the century of precedent on which they relied.

The majority also claimed its work was already done by 1968’s Powell v. Texas, which declined to extend Robinson to immunize conduct that was alleged to be involuntary because of strong psychological urges. But Powell did not address the penalization of conduct that is physically impossible to avoid because there is literally no other option.

What are the implications of Grants Pass? The decision leaves unsheltered people vulnerable to a cascade of fines and jail stints that can only hinder their efforts to achieve housing stability. In addition, by blessing ordinances that aim to push people experiencing homelessness into neighboring jurisdictions, it may kick off an arm’s race among cities pursuing ever more harsh measures to exile their undesired residents.

Still, some possibilities remain. The injunction in Grants Pass was independently supported by a ruling that the ordinances violated the Eighth Amendment’s Excessive Fines Clause. For procedural reasons, that ruling was never evaluated on appeal, and it remains a promising avenue for class-wide relief.

Furthermore, due process and selective prosecution claims may be viable if an ordinance or its enforcement are targeted exclusively at unhoused people. And, in individual prosecutions, people with no shelter available may be able to assert a necessity defense under state law, although the value of such a case-by-case approach for homeless defendants is unclear.

Doctrinally, Grants Pass endorses a narrow and ahistorical new definition of “cruel” punishment. Drawing exclusively from 2019’s Bucklew v. Precythe, a case challenging methods of capital punishment, the majority describes the Punishments Clause as intended only to prevent a revival of the gruesome execution methods that England once inflicted for treason and murder.

This account is pure fiction, unsupported by historical evidence and propped up instead with misleadingly arranged snippets of quotes.

The upshot is that the Court has taken a random phrase from William Blackstone—in a passage with no connection to the Eighth Amendment or its predecessor in the English Bill of Rights—and pronounced it the test for Eighth Amendment cruelty: “None of the city’s sanctions qualifies as cruel because none is designed to ‘superadd’ ‘terror, pain, or disgrace.’”

It remains to be seen how far the Court takes this narrow view of the Eighth Amendment in future cases.

Brian Frazelle is Deputy Chief Counsel at the Constitutional Accountability Center.

This essay is part of a series, titled The Supreme Court’s 2023-2024 Regulatory Term.