Anyone who follows the Supreme Court knows that its current conservative majority treats almost all Eighth Amendment claims with disdain. The Court has been notoriously unsympathetic to even the most straightforward cases alleging that a punishment is cruel and unusual.
The Court has used its originalist methodology to tether the meaning of the Eighth Amendment to forms of punishment that were considered barbarous by the people who authored it. So it should have come as no surprise when, last week, the Court turned aside a claim that it is unconstitutional to criminalize homelessness.
The Court’s decision in City of Grants Pass v. Johnson displays a familiar set of moves to further eviscerate the Eighth Amendment. Among them are a cramped reading of an existing precedent, faux deference to the political process, and cold indifference to the most vulnerable in our society.
Before looking more closely at the Grants Pass decision, let’s look at the Court’s recent treatment of the Eighth Amendment.
On June 18, Duncan Hosie published a thorough overview of what the Court has done in this area. He shows how the Court has taken up Justice Clarence Thomas’s crusade to limit the reach of the Eighth Amendment by insisting that its meaning not be determined in light of “‘evolving standards of decency that mark the progress of a maturing society.’”
That crusade began thirty years ago when Thomas wrote, “I continue to doubt the legitimacy of that mode of constitutional decision making.” At the time, Thomas urged his colleagues to “reconsider” the “dubious precedents” behind those standards “in light of the constitutional text and history.”
Hosie writes that “[i]n subsequent cases, Thomas pressed his revisionist case against various applications of the ‘evolving standards of decency’ criterion, but for twenty-five years the Court declined to follow his lead…. But his ideas have found purchase with more recent Republican appointees.”
In its 2019 Bucklew v. Precythe decision upholding the constitutionality of lethal injection, his colleagues came around to Thomas’s view. As Hosie observes, Justice Neil Gorsuch’s majority opinion “did not say the evolving standards of decency were no longer viable—in fact, he made no mention of them—but that was its practical effect….”
Indeed, Gorsuch went out of his way to point out that Bucklew’s claim failed because it was “inconsistent with the original and historical understanding of the Eighth Amendment.”
In his Bucklew concurrence, Thomas drove this point home. He explained that “[t]he historical evidence shows that the Framers sought to disable Congress from imposing various kinds of torturous punishments, such as ‘gibbeting,’ ‘burning at the stake,’ and ‘embowelling alive, beheading, and quartering.’”
Thomas argued that a punishment “not specifically contemplated at the founding could today be imposed to ‘superad[d]’ ‘terror, pain, or disgrace.’” Gorsuch had used this same formulation in his majority opinion.
Then, making clear his wish to empty the Eighth Amendment of any constitutional significance, Thomas said, “Thankfully—and consistent with Justice Story’s view that the Eighth Amendment is “wholly unnecessary in a free government….—States do not attempt to devise such diabolical punishments.”
In Grants Pass, the local government adopted a “diabolical punishment,” though not one Thomas would recognize as such.
As part of a multifaceted effort to deal with its homelessness problem, it enacted ordinances that, as Justice Sonia Sotomayor explained in her dissent, “effectively made it unlawful to sleep anywhere in public, including in your car, at any time, with as little as a blanket or a rolled-up shirt as a pillow.”
Penalties for violating the ordinances range from fines and exclusion orders to up to 30 days in jail. The plaintiffs sued, claiming that these ordinances amounted to punishments for their status as homeless people and that the Eighth Amendment barred such punishments.
In 2022, the Ninth Circuit decided in their favor. It held that it is “cruel and unusual” for the government to criminalize homeless people for sleeping outside on public property when they have no shelter to go to. Contra Justice Thomas, the court observed that the “proper interpretation of the Eighth Amendment “does not turn exclusively on standards from hundreds of years ago.”
In response, as Hosie reports, “Fourteen Republican-appointed judges on the Ninth Circuit urged the Supreme Court to grant review of Grants Pass and reverse it. The Republican judges claimed that their colleagues had erred by not considering the amendment’s “text, history, and tradition.”
And Republican attorneys general of twenty states submitted an amicus brief to the Court in which they, too, advised the Court to use Grants Pass to get rid of the evolving standards of decency.
While last week’s decision was another step toward neutering the Eighth Amendment, the Court did not directly address the evolving standards of decency test. But it came close.
Justice Gorsuch, writing for the majority, insisted that the punishments at stake in the Grants Pass case do not qualify as cruel because they were not designed to superadd pain or disgrace. This is, of course, the language Thomas and Gorsuch used in Bucklew to connect the meaning of the Eighth Amendment to what the Founders intended.
In Grants Pass, Gorsuch insisted that the amendment only covers the method or kind of punishment a government may impose after a criminal conviction, not “whether a government may criminalize particular behavior in the first place.”
To reach this result, he offered a cramped reading of the 1962 Supreme Court decision in Robinson v. California. In that case, the Court held that under the Cruel and Unusual Punishments Clause, a California law providing that “no person shall be addicted to the use of narcotics” was unconstitutional because it criminalized a status.
Gorsuch claimed that the Grant Pass camping ordinances “do not criminalize status.”
He also trotted out familiar arguments about the limits of judicial competence, limits which, as its dismantling of the Chevron deference doctrine showed, he and his right-wing colleagues are prepared to ignore whenever it suits their convenience. Gorsuch argued that, “A handful of federal judges cannot begin to match the collective wisdom of the American people…in deciding how best to handle a pressing question like homelessness.”
As aggressive as Gorsuch was in his takedown of Robinson and the Eighth Amendment, he did not go far enough to satisfy Thomas. Thomas was disappointed the majority neither overruled Robinson directly nor said explicitly that “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.”
Sotomayor used her dissent to point out that a long line of cases, including but not limited to Robinson, had recognized that, among other things, the Eighth Amendment “imposes substantive limits on what can be made criminal and punished as such.” She was right to say that the majority ignored most of those cases and that its understanding of Robinson was “plainly wrong.”
She reviewed the Grants Pass ordinances’ purposes, their text, and the way they had been enforced and concluded that the ordinances “target status, not conduct.”
She called out Gorsuch’s faulty logic that held that cities “cannot criminalize the status of being homeless, but they can criminalize the conduct that defines that status.” She rightly noted that the Eighth Amendment’s meaning should not hinge on “such formalistic distinctions.”
In the end, Sotomayor helps us see what the Court is up to in Grants Pass and other Eighth Amendment cases. It wants to eviscerate that amendment because, when rightly interpreted, it plays a key role in “safeguarding constitutional liberties for the most vulnerable among us.”
And, as The Atlantic’s Elizabeth Bruenig puts it in her stirring critique of the Court’s refusal to protect such people, “The constitutional right whose protections lie nearest to the skin, flesh, and blood of each American citizen is the Eighth Amendment…. And though its disintegration may go unnoticed by those who, through good sense or good fortune, never encounter governmental punishment, its loss is felt acutely by those who do.”
Tragically, that group now includes hundreds of thousands of homeless people who, thanks to Gorsuch, Thomas, and the rest of the Court’s conservative majority, can be punished merely for having no place to sleep.