“Maybe the right-wing justices could empathize with the most vulnerable Americans if they spent less time jet-setting on luxury vacations on their wealthy benefactors’ dime,” said one critic.

By Brett Wilkins for Common Dreams

“SCOTUS just criminalized homelessness.”

So said numerous legal experts and advocates for the unhoused Friday after the U.S. Supreme Court’s right-wing supermajority ruled that local governments can enforce bans on sleeping outdoors, regardless of whether municipalities are able to offer them shelter space.

In a 6-3 decision along ideological lines, the justices ruled in City of Grants Pass, Oregon v. Johnson that officials can criminalize sleeping and camping on public property including parks, even when housing options are unavailable or unaffordable.

“We are disappointed that a majority of the court has decided that our Constitution allows a city to punish its homeless residents simply for sleeping outside with a blanket to survive the cold when there is nowhere else for them to go,” said Ed Johnson, director of litigation at the Oregon Law Center, which represented unhoused Grants Pass residents in the case.

The decision overturned a ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals that found bans on outdoor sleeping violated the 8th Amendment’s proscription of cruel and unusual punishment.

“Homelessness is complex. Its causes are many. So may be the public policy responses required to address it,” Justice Neil Gorsuch wrote for the majority. “A handful of federal judges cannot begin to ‘match’ the collective wisdom the American people possess in deciding ‘how best to handle’ a pressing social question like homelessness.”

Gorsuch suggested that unhoused people could invoke “necessity… insanity, diminished-capacity, and duress defenses” when they are prosecuted for poverty-related offenses.

In a dissent calling the criminalization of unhoused people “unconscionable and unconstitutional,” Justice Sonia Sotomayor wrote that “sleep is a biological necessity, not a crime.”

“For some people, sleeping outside is their only option,” she noted.

Sotomayor continued:

Homelessness is a reality for too many Americans. On any given night, over half a million people across the country lack a fixed, regular, and adequate nighttime residence. Many do not have access to shelters and are left to sleep in cars, sidewalks, parks, and other public places. They experience homelessness due to complex and interconnected issues, including crippling debt and stagnant wages; domestic and sexual abuse; physical and psychiatric disabilities; and rising housing costs coupled with declining affordable housing options.

-Justice Sonia Sotomayor

“It is possible to acknowledge and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles,” Sotomayor asserted. “Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”

“The Constitution provides a baseline of rights for all Americans rich and poor, housed and unhoused,” Sotomayor added. “This court must safeguard those rights even when, and perhaps especially when, doing so is uncomfortable or unpopular.”

Attorney Theane Evangelis, who represented Grants Pass in the case, cheered the decision, arguing that the 9th Circuit ruling had “tied the hands of local governments.”

Some leaders in places where the homelessness crisis is most acute welcomed Friday’s ruling, including Democratic California Gov. Gavin Newsom, who filed an amicus brief in the case, and London Breed, the Democratic mayor of San Francisco, which also filed an amicus brief.

“Gorsuch extensively cites San Francisco’s amicus in the decision,” noted Raya Steier, a San Francisco-based attorney who led the successful campaign to pass a local ballot measure taxing the wealthy to generate hundreds of millions of dollars in revenue for Covid rent relief and affordable housing. “Congratulations London Breed and David Chiu, this is now your legacy.”

Economic justice advocates said rising inequality and housing costs have played a key role in driving the U.S. unhoused population to a record 650,000. If all the unhoused people in the country came together to form a city, it would be the nation’s 23rd-largest—ahead of Las Vegas, Boston, Detroit, and Portland, Oregon—based on 2020 Census figures.

“We are in the midst of a crisis where housing is unaffordable for millions of Americans. Millions of us are just one paycheck away from losing our homes,” New York-based Center for Popular Democracy Action said in a statement. “Today, the Supreme Court has made the morally bankrupt decision to allow people experiencing homelessness to be persecuted and punished just for existing, while denying them shelter and safety as a human right.”

“For those who are unhoused, this will mean fines, tickets, and even incarceration for a vulnerable community already abandoned by city and state authorities,” the group added.

Referring to the high court’s 2010 Citizens United v. Federal Election Commission ruling, many social media users said that “corporations are people” but “the homeless are not.”

Others pointed to the millions of dollars worth of gifts and other perks—many of them undisclosed—lavished upon Supreme Court members, especially far-right Justices Clarence Thomas and Samuel Alito, by right-wing billionaires, some with business before the court.

“Today’s decision shows how little the MAGA supermajority cares about struggling Americans,” said Tracy Adair, communications manager at Stand Up America, a New York-based pro-democracy group. “It is unfathomably cruel to punish unhoused individuals for existing on public property when they have nowhere else to go.”

“Maybe the right-wing justices could empathize with the most vulnerable Americans if they spent less time jet-setting on luxury vacations on their wealthy benefactors’ dime,” Adair added.

Advocates for the unhoused stressed that the solution to homelessness is housing, not criminalization.

“Cities should not punish people for being poor,” said Jennifer Friedenbach, executive director of the Coalition on Homelessness, a housing justice and human rights group serving San Francisco. “The solution is, and has always been, safe and affordable housing.”

In response to the ruling, the National Homelessness Law Center is calling on the Biden administration to invest at least $356 billion next year to fund universal rental assistance, upgraded public housing, a national housing trust fund, eviction and homelessness prevention programs, and voluntary supportive and emergency services.

“America is the richest country in the world. We can afford to ensure that everybody has a roof over their heads, a warm bed, and a door to lock,” the group sad. “Our neighbors living outside cannot wait any longer.”