10 of the most interesting questions posed by the justices during the Supreme Court oral arguments in the City of Grants Pass vs Johnson case today (4-22-24) along with the responses:

1. Justice Thomas’ Inquiry on Legal Penalties:

Question: “Do you consider these civil or criminal penalties?”

Response: The petitioner clarified that the penalties could be both civil and criminal, depending on the context, highlighting the complex nature of the enforcement actions against homeless individuals.

2. Justice Kagan’s Focus on the Nature of the Prohibited Conduct:

Question: “What is the conduct here?”

Response: The petitioner argued that the conduct in question was not just sleeping but establishing a campsite, which could involve making a bed or laying down bedding materials. This was meant to distinguish it from merely being present or asleep in a public place.

3. Justice Sotomayor’s Concerns About Enforcement and Fairness:

Question: “You only arrest people who don’t have a home, is that correct?”

Response: The petitioner insisted that the laws are generally applicable and not exclusively targeting the homeless, although they could not provide specific examples of non-homeless individuals being similarly penalized.

4. Justice Gorsuch’s Question on Legal Defenses:

Question: “Are there instances in which a necessity defense, recognized at common law, would apply to eating in public, sleeping in public, or other things like that?”

Response: The petitioner acknowledged that Oregon law includes a necessity defense, which could apply to cases of involuntary conduct due to homelessness.

5. Justice Jackson’s Hypothetical on Eating in Public:

Question: “Suppose the relevant ordinance prohibited eating on public property rather than sleeping or camping. What about people who can’t afford to eat privately?”

Response: The petitioner struggled with this analogy, eventually suggesting that such a scenario would raise due process concerns but might not necessarily implicate the Eighth Amendment.

6. Justice Kagan’s Query on Criminalizing Status:

Question: “Could you criminalize the status of homelessness?”

Response: The petitioner struggled with this question, suggesting that while homelessness is not similar to drug addiction (as discussed in Robinson v. California), it might not be straightforwardly criminalized under the Eighth Amendment without facing other legal challenges, such as vagueness or due process concerns.

7. Justice Jackson’s Question on Public Policy and Constitutionality:

Question: “Suppose the City decided to execute homeless people; would we have an Eighth Amendment issue?”

Response: This extreme hypothetical brought a clear response from the petitioner acknowledging that such a measure would indeed be both cruel and unusual, affirming the Eighth Amendment’s relevance in protecting fundamental human rights.

8. Chief Justice Roberts’ Inquiry About Changing Status:

Question: “If someone is homeless for a week and then finds a shelter, is that person still considered homeless?”

Response: The petitioner discussed the fluid nature of homelessness, indicating that someone could still be considered homeless under certain definitions even if they find temporary shelter, highlighting the complexity in defining and addressing homelessness.

9. Justice Sotomayor’s Concern on the Practical Implications of the Law:

Question: “Where are they supposed to sleep, are they supposed to kill themselves, not sleeping?”

Response: This emotional question from Justice Sotomayor underlined the severe human consequences of the law. The petitioner reiterated the availability of necessity defenses under Oregon law, but struggled to provide a satisfactory answer to the broader humanitarian issue raised.

10. Justice Alito’s Comparison of Involuntariness:

 -Question: “Is the inability to refrain from sleeping outside because there’s no shelter available more compelling than drug addicts’ compulsions under Robinson?”

 -Response: The petitioner acknowledged that the direct and immediate need to sleep outside due to lack of alternatives might present a stronger case for involuntariness than the compulsions associated with drug addiction discussed in Robinson v. California.


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