Two Supreme Court rulings on Friday that dramatically changed the law are a reminder that presidential elections matter to all of us. Like many court actions, it was a 6-3 decision, with a majority of three judges appointed by President Trump. These decisions – like the overruling of Roe vs. Wade and the expansion of gun rights in the new year – simply would not have happened if Hillary Clinton had won the presidency in 2016 and she had chosen three judges.
In other words, the decision cannot be explained by the methodology of precedent or interpretation. It’s just a matter of conservative judges imposing conservative ideology to arrive at conservative results.
In City of Grants Pass vs. Johnson, the court held that a municipality can make it a crime for people to sleep in public even if there are not enough shelter beds to accommodate them. Grants Pass, Ore., has a population of about 39,000 and a homeless population of about 600. It adopted a series of regulations intended to prevent unhoused individuals from sleeping on public property. The 9th Circuit Court of Appeals declared this unconstitutional and concluded: “The City of Grants cannot, consistent with the Eighth Amendment” – which prohibits cruel and unusual punishment – “enforce anti-camp ordinances … fundamental protection from the elements .. .when there is nowhere else in the City to go.
The 9th Circuit is clearly correct as a matter of law: It violates the 8th Amendment to punish someone for an activity — sleeping — that is essentially beyond their control. And it is also true as a matter of public policy. No city is going to solve homelessness by prosecuting the homeless. Impose fines that make homeless people unable to pay or go to jail for a short period of time, not permanently.
Justice Neil M. Gorsuch wrote an opinion that reversed the 9th Circuit. Justice Sonia Sotomayor dissented to explain the cruelty of making it a crime to sleep in public even if there is no other place: homelessness, and our constitutional principles. However, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Stay awake or be detained.
Another decision on Friday that clearly reflected conservative ideology involved a more technical area of the law. In 1984, in Chevron USA vs. Natural Resources Defense Council, the Supreme Court unanimously held that federal courts must defer to federal agencies when interpreting ambiguous federal statutes. This means, for example, that the court must suspend the judgment of the Environmental Protection Agency when the agency sets rules under the Clean Air Act for how much certain pollutants can be put into the air. “Chevron deference,” as it is known, is based on the idea that Congress cannot legislate specifically for each matter and purposefully leaves many details to the expertise of federal agencies. Especially on technical issues, agencies and not courts are experts.
But business has long resisted Chevron’s respectability. They want to make it easier to challenge agency regulations in court. On Friday, the Supreme Court granted its wish and firmly rejected Chevron’s decision. Chief Justice John G. Roberts Jr. wrote for the court: “The reviewing court — not the agency whose action is being reviewed — decides all relevant questions of law and the interpretation of . . . statutory provisions.”
As it did in overturning Roe vs. Wade, the Roberts court again gave no weight to precedent in throwing out 40-year-old decisions that had been the cornerstone of administrative law. The decision represents a shift in power from federal agencies to the courts. As Justice Elena Kagan said in her dissent, it will produce “a large-scale disturbance” because Chevron deference has become an important part of “modern government, supporting regulatory efforts of all kinds – to name a few, maintaining clean air and water, food. and medicine safe, and honest financial markets.
Both of Friday’s decisions will have a real impact on the lives of real people. Homeless people now face criminal sanctions for fulfilling their biological need to sleep in public when they have nowhere else to sleep. The agency’s rules to protect the public’s health and safety are more likely to be repealed.
The explanation for this judgment cannot be found in anything in the law; can only be explained by those in the Supreme Court. As the public focuses on the 2024 presidential election, especially during Thursday night’s debate, it’s important to remember that a president’s longest lasting legacy is whoever he puts on the Supreme Court.
Erwin Chemerinksy is a contributing writer for Opinion and dean of the UC Berkeley School of Law.
