George F. Will: The homeless right-to-camp issue comes to the Supreme Court

The phrase “often in error but never in doubt” could have been coined for the U.S. Court of Appeals for the 9th Circuit. The appellate court most frequently reversed by the Supreme Court in recent years should brace itself for another reprimand during Monday’s oral arguments before that court.

The town of Grants Pass, Oregon, and many other cities in the nine Western states within the 9th Circuit’s jurisdiction, are seeking relief from one of its decisions. The consequences of it include (Grants Pass said in asking the Supreme Court to hear the case) “the reemergence of medieval diseases” such as typhus and tuberculosis.

In 2020, a court in nearby Medford struck down a Grants Pass ordinance imposing fines, as well as a possible 30-day sentence for repeat offenders, on homeless people camping on public property, when there are sufficient shelter beds available in the city. The court said this violated the Constitution’s Eighth Amendment prohibition of cruel and unusual punishments, and excessive fines. In 2022, a three-judge panel of the 9th Circuit affirmed this decision, having ruled similarly in a previous case, requiring sufficient “secular shelter space.” (Otherwise, the First Amendment guarantee against “establishment of religion” would be violated. Really.) Grants Pass’s only shelter has a religious affiliation.

The full 9th Circuit refused to reconsider this. Dissenting from this refusal, one judge (joined by 14 others) said that the majority had created a constitutional right “to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws.”

Enforcement of camping ordinances is impermissible if even one homeless person is without a bed. This paralyzes cities’ attempts to cope with the disease, disorder and crime associated with homeless encampments. And many homeless persons – sometimes a majority – reject shelters, fearing violence, and inhibitions on drug use.

Progressives say the 9th Circuit’s decision regarding “our unhoused neighbors” simply prevents criminalizing the “underlying status” of being homeless. This, they say, results from racism, low wages and insufficient affordable housing. Disregard the verbal tic about racism. Rhetoric about “living wages” and “affordable” this or that ignores a fact: Most of those who are homeless are unemployable casualties of mental illness (schizophrenias, depression, bipolar disorder, etc.) and drug abuse.

Furthermore, the court-concocted constitutional right to unrestricted camping misconstrues the Eighth Amendment, which concerns modes of punishment (e.g., burning at the stake, brandling, flogging), not activities that might be punished. The 9th Circuit thinks the Eighth Amendment prohibits punishing conduct (e.g., drug abuse) that is supposedly involuntary because it is unavoidable: It is inseparable from a status (homelessness).

But by erasing the distinction between an activity and a status, such reasoning erases individual agency, a foundational concept of law. And it potentially places sweeping limits on what conduct can be criminalized. The 9th Circuit transforms the Eighth Amendment from a restriction on kinds of punishment into a doctrine that radically dilutes the idea of criminal responsibility.

An amicus brief from the Pacific Research Institute notes that, in all eras, vagrants have experienced pressures from circumstances. (As have most criminals.) So, is any punishment disproportional for behavior an individual cannot control? What about a “compulsive” desire for child pornography? Beware, the PRI brief says, of “simplistic dichotomies between voluntary and involuntary conduct or avoidable and unavoidable choices.”

The 9th Circuit has, in effect, created a subsidy for being homeless, which often is the outcome of multiple choices. And if homeless people lack, as some of their advocates seem to say, volition in controlling their behavior, they lack the capacity to care for themselves, and could be involuntarily committed to institutions.

Homelessness involves political choices which courts are ill-suited to make. And it is a subject concerning which public health institutions can further ruin the reputations they damaged during the pandemic.

The meddlesome Centers for Disease Control and Prevention, which recommends social distancing in homeless shelters, warns that clearing encampments of the homeless will “break connections with service providers” and should not occur unless “individual housing units” are provided. The CDC is the 9th Circuit of public health institutions. But, then, the 9th Circuit seems to fancy itself a public health policymaker, sweepingly removing choices from local governments.

Since 2007, the Supreme Court has reversed 80% of the rulings it has considered from the 9th Circuit. In the term that began in October 2020, the court reversed 94%; in the October 2021 term, 100%. Grants Pass should have an agreeable Monday in court.

Reach George Will at georgewill@washpost.com.