In the most significant homelessness case to reach the Supreme Court in decades, the justices appear split on what it means to be homeless, whether being homeless is a “status,” and whether the complicated issue should be decided by the courts at all. 

The justices heard arguments on Monday on whether cities enforcing public camping bans in the absence of available shelter beds is a violation of the Eighth Amendment’s cruel and unusual punishment clause.

A small Oregon city, Grants Pass, brought the case to the high court after a 2022 ruling from the Ninth Circuit court prevented the city from enforcing its own anti-camping ordinances, holding that a lack of shelter space makes homelessness an involuntary status.

“This court should reverse and end the Ninth Circuit’s failed experiment, which has fueled the spread of encampments while harming those it purports to protect,” a lawyer for the city, Theane Evangelis, told the justices in opening statements on Monday. 

Critical to Monday’s arguments was a Supreme Court ruling in 1962, Robinson v. California, which held that states cannot punish a person for the “status” of being addicted to drugs. 

Grants Pass argued that Robinson didn’t “bar punishment for any involuntary conduct that’s linked to a status” and instead made it clear that states can punish “conduct such as drug use.” The city also argued that the Ninth Circuit’s rulings had “proven unworkable” since it did not define many legal aspects of the homelessness crisis, instead paving the way for “shifting standards” as federal courts make complicated policy decisions in lieu of municipalities. 

The liberal justices peppered the city’s lawyer with questions about whether the law was specifically targeting homeless people rather than being generally applicable and whether the law criminalized homeless people for merely existing in public. 

“The police officers testified that that means that if a stargazer wants to take a blanket or a sleeping bag out at night to watch the stars and falls asleep, you don’t arrest them. You don’t arrest babies who have blankets over them. You don’t arrest people who are sleeping on the beach, as I tend to do if I’ve been there a while,” Justice Sonia Sotomayor said to the city’s lawyer, adding that the ordinance only arrests people who don’t have a house.

The city sparred with the liberal justices over what being homeless means, as the city’s lawyer said it’s not a status since it’s fluid and a person’s living situation can change from day to day, and Justice Elena Kagan pushed back that homelessness is “the status of not having a home.”

“Sleeping is a biological necessity, it’s sort of like breathing. I mean you could say breathing is conduct too, but presumably you would not think that it’s okay to criminalize breathing,” Justice Kagan said. “And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.”

The conservative majority appeared skeptical of the idea that the court should be deciding universally on some of the serious and differing problems facing local governments.

“Municipalities have competing priorities. I mean, what if there are lead pipes in the water? Do you build the homeless shelter, or do you take care of the lead pipes? What if there isn’t enough fire protection? Which one do you prioritize?” Chief Justice Roberts asked the Biden administration’s lawyer. “Why would you think that these nine people are the best people to judge and weigh those policy judgments?”

Chief Justice Roberts noted that “eating is a basic human function,” just like sleeping, and asked if a hungry person would be legally protected from robbing food from a store. Justice Neil Gorsuch asked similar questions about if people had a right to “defecate and urinate” in the absence of public bathrooms.

The “24/7 city wide sweeping ban” is both broad and unconstitutional, a lawyer for the homeless people challenging Grants Pass, Kelsi Corkran, argued.

“Although the city describes its ordinances as punishing camping on public property, it defines campsite as any place a homeless person is while covered with a blanket,” she said. “The city interprets and applies the ordinances to permit non-homeless people to rest on blankets and public parks, while the homeless person who does the same thing breaks the law. The ordinances by design make it physically impossible for homeless people to live in Grants Pass without facing endless fines and jail time.”

Homeless advocates and local governments across the county are eagerly awaiting the court’s verdict in the case, which is expected by June. An unusual coalition of Republican leaders, Governor Newsom, and free-market think tanks had petitioned the Supreme Court to weigh in on the topic, arguing that the Ninth Circuit’s ruling set unclear terms for cities and had tied local government’s hands — legal briefs described a slew of health and public safety issues cities face as they navigate the sprawling encampments taking over West Coast cities.

“I hope this goes to the Supreme Court, and that’s a hell of a statement for a progressive Democrat,” Mr. Newsom said last fall in an acknowledgment of how large the homelessness crisis had become.