The Volokh Conspiracy

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The Supreme Court Refuses To Extend Robinson v. California, A Non-Originalist Decision

Even if an erroneous precedent cannot be overruled, isolate the damage, and decline to extend it to new circumstances.


Robinson v. California (1962) may be peak Warren Court activism. California made it a crime to be addicted to narcotics–not simply to use drugs, but to be addicted to using them. Robinson argued that this law violates some sort of substantive due process right. This was three years before Griswold, so the Court still was stuck under the New Deal settlement that rejected substantive due process. So what does the Warren Court do? It manufactures a new standard based on the Eighth Amendment out of whole cloth. Sort of like a penumbra. (Griswold favorably cites Robinson.) The Robinson Court held that it would violate the Eighth Amendment to punish someone because of the "status" of being a drug addict. The Court ruled that when punishing "'status,'" "[e]ven one day in prison would be . . . cruel and unusual." Id., at 666–667.

This argument was not raised by the defendant. Justice Gorsuch's majority opinion explains:

Reaching that conclusion under the banner of the Eighth Amendment may have come as a surprise to the litigants.Mr. Robinson challenged his conviction principally on the ground that it offended the Fourteenth Amendment's guarantee of due process of law. . . . Mr. Robinson's resort to the Eighth Amendment was comparatively brief. He referenced it only in passing, and only for the proposition that forcing a drug addict like himself to go "'cold turkey'" in a jail cell after conviction entailed such "intense mental and physical torment" that it was akin to "the burning of witches at the stake." Robinson Brief 30. The State responded to that argument with barely a paragraph of analysis, Brief for Appellee in Robinson v. California, O. T. 1961, No. 61–554, pp. 22–23, and it received virtually no attention at oral argument.

During oral argument, there were zero questions about the Eighth Amendment–I found one fleeting reference to a "cruel and unusual punishment," but that was it.

Robinson resembles another Warren Court classic decided one year earlier, Mapp v. Ohio (1961). In that landmark precedent, the Court transformed a First Amendment obscenity case into a Fourth Amendment case. The Court "incorporated" the exclusionary rule and overturned Wolf v. Colorado, even tough the Defendant did not seek to overrule that precedent, only the ACLU as amicus did. Whenever current members of the Court want to complain about the Court reaching out to decide issues that are not presented, they should think carefully about Mapp and Robinson. But at least in Grant's Pass, Justice Sotomayor's dissent preached fidelity to a precedent that was manufactured out of thin air without the benefit of party presentation. So much for judicial "modesty."

The most obvious response to Robinson would be to overrule it. But, in an act of restraint, the Roberts Court declines to overrule a precedent that Grants Pass did not ask to overrule. (A MAGA Court would have held that the Fourteenth Amendment requires the government to protect citizens from homeless encampments.)

Justice Thomas's concurrence explains at length why Robinson ought to be overruled.

First, the precedent that the respondents primarily rely upon, Robinson v. California, 370 U. S. 660 (1962), was wrongly decided. In Robinson, the Court held that the Cruel and Unusual Punishments Clause prohibits the enforcement of laws criminalizing a person's status. That holding conflicts with the plain text and history of the Cruel and Unusual Punishments Clause. That fact is unsurprising given that the Robinson Court made no attempt to analyze the Eighth Amendment's text or discern its original meaning. Instead, Robinson's holding rested almost entirely on the Court's understanding of public opinion: The Robinson Court observed that "in the light of contemporary human knowledge, a law which made a criminal offense of . . . a disease [such as narcotics addiction] would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Modern public opinion is not an appropriate metric for interpreting the Cruel and Unusual Punishments Clause—or any provision of the Constitution for that matter.

If you're looking for the "intellectual and theoretical leader on the court" of the Court, it is still Justice Thomas. Justice Barrett tends to write separately to moderate when she cannot join a conservative majority opinion in full. To be a leader, one must be followed. I've yet to see anyone follow Justice Barrett on or off the Court.

The majority, though, finds no need to overrule Robinson because this case is distinguishable.

Still, no one has asked us to reconsider Robinson. Nor do we see any need to do so today. Whatever its persuasive force as an interpretation of the Eighth Amendment, it cannot sustain the Ninth Circuit's course since Martin. In Robinson, the Court expressly recognized the "broad power" States enjoy over the substance of their criminal laws, stressing that they may criminalize knowing or intentional drug use even by those suffering from addiction. 370 U. S., at 664, 666. The Court held only that a State may not criminalize the "'status'" of being an addict. Id., at 666. In criminalizing a mere status, Robinson stressed, California had taken a historically anomalous approach toward criminal liability. One, in fact, this Court has not encountered since Robinson itself.

Public camping ordinances like those before us are nothing like the law at issue in Robinson. Rather than criminalize mere status, Grants Pass forbids actions like "occupy[ing] a campsite" on public property "for the purpose of maintaining a temporary place to live." … In that respect, the city's laws parallel those found in countless jurisdictions across the country. See Part I–A, supra. And because laws like these do not criminalize mere status, Robinson is not implicated.

But are the cases distinguishable? Depends how you look at it. As I explained in an earlier post, the Court's conservatives and liberals have long argued about whether to characterize laws as regulations on the basis of status or conduct. I think Justice Sotomayor's dissent makes some fair points, so long as you accept the "status" framing of the case. I won't rehash that debate here.

Rather, what is important is that the majority recognized that Robinson was inconsistent with original meaning, and declined to extend that non-originalist precedent.

The plaintiffs sought to extend Robinson:

If Robinson does not control this case, the plaintiffs andthe dissent argue, we should extend it so that it does. Perhaps a person does not violate ordinances like Grants Pass'ssimply by being homeless but only by engaging in certain acts (actus rei) with certain mental states (mentes reae).Still, the plaintiffs and the dissent insist, laws like these seek to regulate actions that are in some sense "involuntary," for some homeless persons cannot help but do what the law forbids. See Brief for Respondents 24–25, 29, 32; post, at 16–17 (opinion of SOTOMAYOR, J.). And, the plaintiffs and the dissent continue, we should extend Robinson to prohibit the enforcement of laws that operate this way—laws that don't proscribe status as such but that proscribe acts, even acts undertaken with some required mentalstate, the defendant cannot help but undertake.

But the Court declined that invitation:

As we have seen, Robinson already sits uneasily with the Amendment's terms, original meaning, and our precedents. Its holding is restricted to laws that criminalize "mere status." Nothing in the decision called into question the "broad power" of States to regulate acts undertaken with some mens rea. And, just as in Powell, we discern nothing in the Eighth Amendment that might provide us with lawful authority to extend Robinson beyond its narrow holding.

This is precisely what the Supreme Court, and all courts should do with non-originalist precedents that do not govern a particular case: refuse to extend it to new circumstances. I developed this theme in my article, Originalism and Stare Decisis in the Lower CourtsEven if an erroneous precedent cannot be overruled, courts should isolate the damage, and decline to extend it to new circumstances.

Oh, and one last piece of advice: in every future Eighth Amendment case, the defendant should preserve the issue of whether any applicable overrule Warren and Burger Court precedents. I can't imagine a case like Robinson has any reliance interests value, and it was egregiously wrong the moment it was decided.

Update: Mike Rappaport and John McGinnis make a similar point about Grants Pass:

Only after outlining the original meaning of the clause did Gorsuch address Robinson. He noted that the issue in Grants Pass was behavior, not status, because the statute penalized an action: camping. Moreover, unlike the statute in Robinson, the Grants Pass enactment was a general law, applying not only to the homeless but to anyone who camped. The Court thus refused to extend the Robinson precedent to this case on originalist grounds.

Grants Pass thus provides an excellent example of what the Supreme Court can do when confronted with precedent inconsistent with original meaning. It can first set forth the original meaning. And then it can refuse to extend or cut back the precedent toward the original meaning if it can do so with a tractable and principled distinction.