The Volokh Conspiracy

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I Get By With A Little Help From My Friends

Justice Gorsuch's majority opinion in Grants Pass leaned heavily on cert-stage and merit-stage amicus briefs from progressive jurisdictions.


I've written two other posts about Grants Pass v. Johnson. First, I commented on whether the law in fact criminalizes the mere status of being homeless, or whether it criminalizes the act of camping in public. Second, I wrote how the Court constrained Robinson v. California, an inherently un-originalist precedent, by declining to extend it.

Here, I will comment on another unusual aspect of the majority opinion: how heavily the majority opinion leaned into amicus briefs. Indeed, Justice Gorsuch's majority opinion cited not only merit-stage briefs, but also cert-stage briefs. The import was clear: even deep-blue jurisdictions from California and similar bastions of leftism contend that the Ninth Circuit's jurisprudence is mistaken. They urged the Court to take the case, and urged the Court to reverse! The majority was quite content to answer the prayer from these progressive enclaves.

Here are just a smattering of citations:

We are told, for example, that the "exponential increase in . . . encampments in recent years has resulted in an increase in crimes both against the homelessband by the homeless." Brief for California State Sheriffs' Associations et al. as Amici Curiae 21 (California SheriffsBrief ). California's Governor reports that encampment inhabitants face heightened risks of "sexual assault" and "subjugation to sex work." Brief for California Governor G. Newsom as Amicus Curiae 11 (California Governor Brief ).And by one estimate, more than 40 percent of the shootings in Seattle in early 2022 were linked to homeless encampments. Brief for Washington State Association of Sheriffs and Police Chiefs as Amicus Curiae on Pet. for Cert. 10 (Washington Sheriffs Brief ).

Nor do problems like these affect everyone equally. Often, encampments are found in a city's "poorest and most vulnerable neighborhoods." Brief for City and County of San Francisco et al. as Amici Curiae on Pet. for Cert. 5 (SanFrancisco Cert. Brief ); see also 2020 HUD Report 9.

Officials in Portland, Oregon, indicate that, between April 2022 and January 2024, over 70 percent of their approximately 3,500 offers of shelter beds to homeless individuals were declined. Brief for League of Oregon Cities et al. as Amici Curiae 5 (Oregon Cities Brief ). Other cities tell us that "the vast majority of their homeless populations are not actively seeking shelter and refuse all services." Brief for Thirteen California Cities as Amici Curiae

3. Surveys cited by the Department of Justice suggest that only "25–41 percent" of "homeless encampment residents""willingly" accept offers of shelter beds.

Consider San Francisco, where each night thousands sleep "in tents and other makeshift structures." Brief for City and County of San Francisco et al. as Amici Curiae 8 (San Francisco Brief ).

Justice Gorsuch relied on the "diverse" range of briefs:

If the multitude of amicus briefs before us proves one thing, it is that the American people are still at it. Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, they display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

The Court even cited all of the petitions filed in support of certiorari. I can't recall ever seeing a listing of cert-stage briefs.

Grants Pass filed a petition for certiorari. A large number of States, cities, and counties from across the Ninth Circuit and the country joined Grants Pass in urging the Court to grant review to assess the Martin experiment. See Part I–B, supra. We agreed to do so. 601 U. S. ___ (2024).3

3Supporters of Grants Pass's petition for certiorari included: The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore, Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Orange, Phoenix, Placentia, Portland, Providence, Redondo Beach, Roseville, Saint Paul, San Clemente, San Diego, San Francisco, San Juan Capistrano, Seattle, Spokane, Tacoma, and Westminster; the National League of Cities, representing more than 19,000 American cities and towns; the League of California Cities, representing 477 California cities; the League of Oregon Cities, representing Oregon's 241 cities; the Association of Idaho Cities, representing Idaho's 199 cities; the League of Arizona Cities and Towns, representing all 91 incorporated Arizona municipalities; the North Dakota League of Cities, comprising 355 cities; the Counties of Honolulu, San Bernardino, San Francisco, and Orange; the National Association of Counties, which represents the Nation's 3,069counties; the California State Association of Counties, representing California's 58 counties; the Special Districts Association of Oregon, representing all of Oregon's special districts; the Washington State Association of Municipal Attorneys, a nonprofit corporation comprising attorneys representing Washington's 281 cities and towns; the International Municipal Lawyers Association, the largest association of attorneys representing municipalities, counties, and special districts across the country; the District Attorneys of Sacramento and San Diego Counties, the California State Sheriffs' Association, the California Police Chiefs Association, and the Washington State Association of Sheriffs and Police Chiefs; California Governor Gavin Newsom and San Francisco Mayor London Breed; and a group of 20 States: Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia.

Justice Sotomayor's dissent charges that the majority only cited favorable amicus brief:

The majority cites various amicus briefs to amplifyGrants Pass's belief that its homelessness crisis is intractable absent the ability to criminalize homelessness. In so doing, the majority chooses to see only what it wants. Many of those stakeholders support the narrow rule in Martin. See, e.g., Brief for City and County of San Francisco et al.

Justice Gorsuch replied that the overwhelming majority of briefs support the majority:

7The dissent suggests we cite selectively to the amici and "see only what [we] wan[t]" in their briefs. Post, at 24. In fact, all the States, cities, and counties listed above (n. 3, supra) asked us to review this case. Among them all, the dissent purports to identify just two public officials and two cities that, according to the dissent, support its view. Post, at 24–25. But even among that select group, the dissent overlooks the fact that each expresses strong dissatisfaction with how Martin has been applied in practice. See San Francisco Brief 15, 26 ("[T]he Ninth Circuit and its lower courts have repeatedly misapplied and overextended theEighth Amendment" and "hamstrung San Francisco's balanced approachto addressing the homelessness crisis"); Brief for City of Los Angeles as Amicus Curiae 6 ("[T]he sweeping rationale in Martin . . . calls into question whether cities can enforce public health and safety laws"); CaliforniaGovernor Brief 3 ("In the wake of Martin, lower courts have blocked efforts to clear encampments while micromanaging what qualifies as a suitable offer of shelter"). And for all the reasons we have explored and so many other cities have suggested, we see no principled basis underthe Eighth Amendment for federal judges to administer anything like Martin.

When the Ninth Circuit is to the left of San Francisco, there is a problem.