In Grants Pass, Justice Sotomayor sliced through the spin

Hello and happy Tuesday. There are 195 days until the election and we’re in the Supreme Court today, where SMS showed up like the new RBG.

That’s Sonia Maria Sotomayor, first Hispanic justice on the court and a lady you don’t want to mess with, as the lawyer for Grants Pass found out (the justices on Monday heard oral arguments in City of Grants Pass, Ore., vs. Gloria Johnson).

Here’s why that much-hyped case may turn out to be a big nothing. And how SMS led the court’s liberal alliance arguing that conclusion.

Robert Tolson, 60, tries to stay warm on a cold, rainy, windy day in Los Angeles in February 2023.

(Francine Orr/Los Angeles Times)

What Grants Pass isn’t

If you read any news, or even secretly get your worldview from TikTok, you’re already sick of hearing about Grants Pass and how the outcome of this case will forever determine how we deal with homelessness.

But stick with me, because much of what you’ve heard isn’t quite true.

Here’s what you probably already know:

• Grants Pass passed a law against public sleeping, in particular snoozing with a blanket.
• The U.S. Court of Appeals for the 9th Circuit stayed the law, saying it was cruel and unusual punishment that was basically making it illegal to be homeless.
• Politicians and local government leaders have since been in a tizzy that Grants Pass “ties our hands” when it comes to doing anything about encampments — as if Grants Pass is the boogeyman of legal decisions that will attack from the shadows if you so much as think about moving a tent.

Gov. Gavin Newsom has even said Grants Pass and associated lawsuits have “plagued our efforts to clear encampments and deliver services to those in need.”

Here’s what you may not have heard: That is a “ridiculous” argument, according to Clare Pastore, a law professor at USC, and many other smart people I talked to.

“There is nothing in Grants Pass that says governments can’t have reasonable laws,” Pastore said.

But the case made it to the Supreme Court, where Sotomayor didn’t mince words Monday when she said Grants Pass is “not about fires. It’s not about tents,” attacking the perception that the 9th Circuit injunction stopped cities from enforcing laws against dangers such as, say, camping the middle of a freeway or lighting a bonfire next to a preschool.

Virtually every other city has so-called time, place and manner laws that regulate when, where and how people can exist unhoused, and those are not at issue in Grants Pass, she pointed out.

If anyone doubts Sotomayor is a leader for the liberal bloc, take a minute to listen to how she engages in arguments — quick, ruthless and pointed.

The Supreme Court seemed to agree with her. Some justices asked why Grants Pass had to make this law, instead of something more restrained.

By the end, it seemed to me Grants Pass was about one city going too far, and politicians who need a boogeyman in an election year.

Try that in a small town

Grants Pass is a once-tiny city. Its population has doubled in the last few decades to 40,000, but its housing stock has not. There is less than a 1% vacancy rate, and at least 600 homeless folks.

There is also only one privately run shelter, and to be real, it sounds terrible. It requires twice-a-day churching; bans sex, pets and other things people like; and makes residents do chores for hours a day with no pay.

And it has only about 130 beds. So hundreds of homeless folks literally have no other option than to sleep outside.

“We are talking about a community that doesn’t have shelter, doesn’t have the thing other communities have,” Antonia Fasanelli, executive director of the National Homelessness Law Center, pointed out .

Grants Pass didn’t seem to want to build shelters but also wasn’t content with not helping homeless folks. It seemed to want to make life hard enough that they would leave town. But how?

In legal-speak, it’s a no-no to pass laws banning people for existing — so you can’t outlaw being a homeless person, any more than you could pass a law saying it’s illegal to be addicted to drugs or LGBTQ+.

To get around that, Grants Pass banned “camping,” anywhere, anytime — including having even a single blanket.

Then it got sued on 8th Amendment grounds that this was de facto making homelessness itself a crime, because the options were freezing to death or getting out of Grants Pass.

Grants Pass tried to argue Monday its ordinances were for everyone, not just homeless people.

No blankets for you, chilly babies!

Sotomayor wasn’t buying it. She brought up the infant example, pointing out the law was obviously not being enforced equally.

It made the law come across as dubious, and cruel.

“Where do we put them if every city, every village, every town lacks compassion and passes a law identical to this?” Sotomayor asked. “Where are they supposed to sleep? Are they supposed to kill themselves, not sleeping?”

Who is ‘involuntarily homeless’

After the 9th Circuit ruled on Grants Pass, putting the city’s law on hold, a bunch of other lawsuits built off the ruling.

Sotomayor was blunt about her thoughts on those, saying some of the other 9th Circuit decisions “are not rational.”

But the Supreme Court has to decide something on Grants Pass. So what will it be?

It probably comes down to who are the “involuntarily homeless” and therefore have some sort of collective rights (Grants Pass is actually a class-action suit, with the class being the “involuntarily homeless.”)

But what the heck does involuntarily homeless mean? If you could return to your abusive husband, are you involuntarily homeless? If you could go to the shelter but can’t take your dog, are you involuntarily homeless? If you have a mental illness and won’t go to a shelter, does that count?

Seriously, I don’t know. No one does. That’s the real problem with Grants Pass.

Faced with the “involuntarily homeless” group, lower courts and municipalities tried to figure it out with lots of confusing rules.

While it wasn’t part of what the Supreme Court is deciding, both California and the U.S. government argued in their friend-of-the-court briefs that the class-action nature of Grants Pass is the problem — we should instead look at each person and decide on their particular circumstances, they argued.

Can you imagine that mess?

Right now, under the Grants Pass ruling, if there aren’t enough shelter beds for everyone, then every unsheltered person is considered involuntarily homeless.

Which approach is better? I could break down those legal positions for you but here’s the thing. There is no right answer. There is actually no answer at all. Every community, every person has a different take on it.

But remember this: That Grants Pass rule on involuntarily homelessness applies only if you don’t have enough shelter beds.

That’s why local governments hate Grants Pass — most don’t have enough beds, and therefore have to worry about whether they will be sued for making rules, or worse, have courts make them.

In communities that have places for people, it is irrelevant.

Build housing.

But the hard fact is, these do have to be local decisions.

My takeaway is that if the Supreme Court dives into a ruling about involuntary homelessness, it will be the conservative majority allowing more leniency for government, without allowing the criminalization of homelessness itself.

Which is not a huge leap from where we are now.

Wrong case, wrong place

But they also may do this — toss out the whole case.

Oregon passed a state law that went into effect last summer that basically says Grants Pass can’t have its no-blanket tantrum.

The Supreme Court could just kick the whole case as “improvidently granted” because the argument Grants Pass is making is now kind of moot.

“Grants Pass can’t do what they want to do because of the state statute,” said Ed Johnson, legal director of the Oregon Law Center, which represents the unhoused plaintiffs.

That would be the easiest and cleanest solution, and not entirely improbable.

Which means for all the hype, Grants Pass is really about Grants Pass — an outlier with its policies that got caught going too far — and may not mean much when it comes to solving the homelessness crisis elsewhere.

The reality is that in places like Los Angeles, it doesn’t really matter what the justices decide. No one is going to start arresting and incarcerating people for simply needing a place to sleep because that doesn’t fix anything, and would likely not be politically popular anyway.

But I’ll end again with SMS, who knows how to send a message, and who reminded us that it’s good to have a kid from the Bronx on the bench.

“What’s so complicated about letting someone somewhere sleep with a blanket in the outside if they have nowhere to sleep?” she asked.

What else you should be reading

The must-read: An Unprecedented Trial Opens With Two Visions of Trump

The Bobby Kennedy is spinning in his grave: Robert Kennedy Jr. pivots right on climate change — but sharpens his threat to Biden

The L.A. Times special: Suspect in break-in at Mayor Bass’ home previously convicted of assault

Stay Golden,
Anita Chabria

P.S. : Abortion in Arizona

My colleagues Faith Pinho and Gina Ferazzi went inside an Arizona abortion clinic last week, giving us this excellent insight into the pressures, trauma and hope of a state (and nation) at a crossroads of women’s rights.

Dr. Barbara Zipkin performs an ultrasound on a 25-year-old patient at Camelback Family Planning in Phoenix.

(Gina Ferazzi/Los Angeles Times)

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