Constitutional But Still Unconscionable: Don’t Let the Supreme Court Get the Last Word on Housing Justice

Photo by JM Suarez via Wikimedia Commons

Yesterday’s Supreme Court decision in Grants Pass vs. Johnson was an abomination. Justice Sotomayor had it right when she said that criminally punishing people for sleeping outside when there is no shelter available to them is “unconscionable and unconstitutional.”

Alas, six of her fellow justices disagreed, ruling that fining and imprisoning people just because they are homeless does not violate the Eighth Amendment prohibition against cruel and unusual punishment. So these vile, counterproductive responses to our housing crisis have been held to be constitutional.

But the second half of Justice Sotomayor’s verdict is alive and well: punishing people because they are unhoused is unconscionable. The Supreme Court failed to stop this hateful practice, but we can.

In my work teaching a law school clinic where we defend people facing eviction, and in research and writing as part of a book project, I have spent the last few years following inspiring housing rights campaigns across the country.

Tenant unions, religious groups, civic organizations, labor unions, and others have come together to lobby local officials in Louisville, confront corporate landlords in North Carolina, run candidates for office in Kansas City, commit civil disobedience in Connecticut, convene phone banks in Tacoma, and fight like hell in dozens of other communities, too. They have won victories like bans on cold-weather and school-year evictions, referendums creating huge boosts in affordable housing funds, ceilings on rent increases, and protections against unlawful evictions.

This growing movement demands the fulfillment of the human right to housing. The people in this movement, not a half-dozen unelected, lifetime-appointed elites in black robes, will have the last word on how we treat our unhoused sisters and brothers,

That was always going to be the case, no matter how the court decided Grants Pass. As a practical matter, the Supreme Court majority only ruled that anti-homeless legislation is allowable—not that it is advisable, much less required. If we the people reject them, new laws criminalizing the state of being homeless will not pass and existing laws will not be retained.

More broadly, transformative justice always comes from the bottom up, not from court decisions handed down from on high. Compare the anti-abolition movement to the Dred Scott decision sanctioning slavery, the civil rights movement to the Plessy v. Ferguson decision that enshrined “separate but equal,”  the labor movement to multiple anti-worker decisions like the Hammer v. Dagenhart ruling that allowed child labor.

During one of my visits to the amazing advocates of the Louisville Tenant Union, I heard one of the tenants tell her story. She and her children had not only been unlawfully evicted, she was wrongly arrested and imprisoned in the process. Judges did not save her, and law enforcement certainly didn’t. Instead, she found support and justice when she joined together with her fellow tenants.

“The powers that be told me I was crazy, but that’s harder to say when I am standing next to 100 other people who have gone through the same thing,” she said. “We are the ones to keep us safe.”

She is right. Laws that imprison people for being unhoused are just as unconscionable today as they were before the Supreme Court ruling. Together, we can stop them. Together, we can keep all of us safe.