When Republican-appointed judges put a constitutional “right” in scare quotes, its days might be numbered. So it’s worth watching a case that prompted that dramatic characterization, in a dispute involving protections for homeless people in the 9th U.S. Circuit Court of Appeals.
The dispute stemmed from a ruling last year by a divided three-judge panel on the San Francisco-based appeals court, with two Democratic appointees in the majority and a Republican appointee dissenting. The circuit covers several Western states, including California.
The panel upheld a trial court ruling that Grants Pass, Oregon, couldn’t enforce ordinances against homeless people for merely sleeping outside with rudimentary protection from the elements, or for sleeping in their cars at night, when there’s nowhere else in the city to go.
Citing a 9th Circuit precedent from 2018, Martin v. City of Boise, the panel’s majority said it was unconstitutional, under the Eighth Amendment, to punish “sleeping somewhere in public if one has nowhere else to do so.” The amendment bars cruel and unusual punishment.
Dissenting from that ruling, a Donald Trump-appointed judge, Daniel Collins, said both the Martin decision and the Grants Pass decision should be overturned “at the earliest opportunity, either by this court sitting en banc or by the U.S. Supreme Court.”
“En banc” refers to the full circuit reconsidering a panel ruling. But this week, there weren’t enough 9th Circuit judges in agreement to do so. Yet, that hardly means the panel’s decision protecting homeless people will stand for all time. Indeed, several GOP-appointed judges, in addition to Collins, lashed out, all but begging their conservative brethren on the Supreme Court to take up the issue.
Their complaints surfaced in multiple writings Wednesday, when the full circuit denied rehearing.
One such statement lamented that “our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws — a dubious holding premised on a fanciful interpretation of the Eighth Amendment.” The two Democratic appointees from the panel majority, in a statement of their own, countered that the notion of such a right “is completely absent from the opinion” and that the “denial of en banc rehearing should not be criticized based on rhetorical exaggerations.” Nonetheless, the critical statement went on to claim that the 9th Circuit is “the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause.” The GOP appointees concluded, “We should have reheard this case en banc to reconsider our unfortunate constitutional mistake.” It’s a “mistake” that the Supreme Court may be more than happy to “correct.” That’s especially so when it comes to a ruling under the Eighth Amendment, which the Republican-appointed justices have interpreted much more stingily than the court’s Democratic appointees, as death penalty cases and other punishment disputes have shown. So, don’t be surprised to see this one get to the justices sooner rather than later.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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