During this year’s NBA all-star game in Indiana, hall-of-famer Charles Barkley brought up San Francisco, the site of next year’s all-star game: “If you had a chance of being in the cold or being around a bunch of homeless crooks in San Francisco, which would you take? You can’t even walk around down there.” When a panelist disputed this claim, Barkley retorted “yeah, with a bulletproof vest and security.” Barkley is right. San Francisco, once a glorious city, is now a cesspool of homeless encampments, human waste, drugs, needles, and rampant crime.
Grants Pass is a small city in eastern Oregon, far less famous than San Francisco. Like its neighbor to the south, however, Grants Pass is dealing with the same problem: homeless encampments. To put a stop to this lunacy, Grants Pass officials instituted a system to end camping in public areas. Initial violations could result in a $295 fine. Subsequent violations could lead to an order banning that individual from the park for 30 days. Anyone who violated that order could face a charge of criminal trespassing, punishable by up to 30 days’ imprisonment and a $1,250 fine.
Radical attorneys for homeless people challenged this new Grants Pass ordinance, and U.S. Magistrate Judge Mark Clarke–who is not even a Senate-confirmed and presidentially appointed Article III judge–issued an injunction against the city. Clinton U.S. Circuit Judge Ronald Gould and Clinton U.S. Senior District Judge Roslyn Silver (sitting by designation) on the Ninth Circuit upheld the injunction holding the homeless-encampment ban (somehow) constituted cruel and unusual punishment and violated the Eighth Amendment. The 2-1 Ninth Circuit panel reasoned the public camping ban punished the status of homelessness because sleeping is biologically necessary. As Trump U.S. Circuit Judge Daniel Collins explained in his dissent, the Ninth Circuit’s ruling was absurd. Urinating and defecating are biological necessities. Do cities have to allow homeless people to be able to do those things in public, too?
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First, the ordinance did not punish homeless people for being homeless. It punished them for camping in public. In recent months, we have seen nationwide pro-Hamas encampments at universities. The Grants Pass ordinance would punish these protesters, many of whom are rich students, in the same way as homeless people.
Grants Pass appealed to the Supreme Court. Three leftist justices—Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—said that Grants Pass violated the Eighth Amendment. Justice Sotomayor made the absurd argument that public camping can't be illegal because sleep is a "biological necessity, not a crime." Defecating is also a biological necessity, but public defecation is a crime throughout the nation. Fortunately for Grants Pass, these liberal justices had to dissent, because the Court has six sane justices, who held that municipalities can indeed ban public camping.
In his opinion for the Court, Justice Neil Gorsuch acknowledged that the policy debate surrounding homelessness is a complex one. Still, he reasoned, federal courts are not the proper forum for resolving that debate. Instead, of course, the people and their elected representatives determine the best way to deal with the problem.
It’s easy to envision a world where the result in Grants Pass comes out differently. After Justice Antonin Scalia died, President Obama nominated then-Judge Merrick Garland, who now serves as President Biden’s Attorney General, to fill the vacancy. Had the Senate confirmed him, the Court would resemble the leftist Ninth Circuit. Every public park in America could become a dystopian wasteland of homeless encampments, drugs, needles, booze bottles, feces, trash, and other filth–instead of safe spaces for parents and kids.
Fortunately, the Senate, under the leadership of Senator Mitch McConnell and Senator Chuck Grassley, refused to hold a hearing on Garland’s nomination. That opened the door for President Donald Trump to appoint three constitutionalist justices who all voted to uphold the public-camping ban. There is little doubt that Garland, who weaponizes the Justice Department against Trump and other conservatives, would vote to strike it down.
The Supreme Court is at stake in the upcoming presidential election. Joe Biden has attacked the Court and pledged to appoint leftist justices like Justice Ketanji Brown Jackson, who voted to permanently prevent cities from cleaning up homeless encampments riddled with drugs, needles, trash, feces, and other filth. While issues like abortion receive a lot of attention, the Court deals with many other cases that dramatically affect our lives.
If the leftist justices got their way, the people of Grants Pass, San Francisco, and every other American city would have to continue to live with these filthy homeless encampments. Instead, officials can clean up their cities and shut down the encampments. Elections matter; judges matter. The current leftist bloc on the Supreme Court is too radical even for San Francisco. If Democrats were to have their way, that leftist bloc could become a majority and ruin the country we all love. Vote accordingly on November 5th.
Mike Davis is the Founder and President of the Article III Project.
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