From CAFE and the Vox Media Podcast Network, this is Stay Tuned in Brief. I’m Preet Bharara.

The Supreme Court recently agreed to hear a case about whether a city in Oregon can ban homeless people from camping and sleeping on public property. Opponents of such public camping ordinances have argued that the bans violate the Eighth Amendment’s protection against cruel and unusual punishment. A ruling in this case could shape how cities across the country address the growing homelessness crisis, particularly in the West. Joining me to discuss this important issue is Abbie VanSickle, who covers the Supreme Court at the New York Times. She’s a lawyer, former public defender, and Pulitzer Prize-winning journalist. Abbie, welcome to the show.

Thanks so much for having me.

So let’s begin with what the issue is. Not the legal issue, but the social or policy issue. Could you explain to folks what it is in particular about homelessness in this city in Oregon and other places around the country that is the problem, and how big the problem is?

Well, it’s quite a big question, but-

That’s the only kind we ask here on Stay Tuned.

Thank you for starting with an easy one. Well, so for Grants Pass, Oregon, which is where this case comes from, the issue really revolves around whether people who are unhoused can sleep on city property. And it’s somewhat of a narrow issue when you think about it at first, but actually, when you start to see how many people have waited on this case … You have the governor of California, you have leaders from both more liberal and conservative cities throughout the West, it really speaks to the larger issues going on here, which is cities and states wrestling with how to handle and how to respond to crisis of homelessness. It’s throughout the country, but maybe, and perhaps importantly here, particularly visible in western states.

Can you give us a sense of how many people are homeless in California, or in this town in Oregon? I think people just have an anecdotal sense of how big the problem is. And is it growing?

What I can say about that is, from the legal briefs in Grants Pass, there’s a wide range. I’ve seen a number from 50 to around 600 people who are … They call them involuntarily homeless. So they don’t have a place to live in Grants Pass. And the city has argued that that number has increased over time. And California, which is home to the majority of people who are homeless throughout the country, I think a specific number is a bit hard to come by, but it’s more than 100,000 people.

So I guess a pragmatic question, before we delve deeper into the legal question, is if you’re a person who doesn’t have a home, you’re unhoused, and there are not enough shelter beds for you and you are swept off of the street in the way that people want to do in this case, you’re not allowed to sleep in a tent, what are your options? Where are you supposed to go?

The plaintiffs in Grants Pass lay this out in the case. And in Grants Pass, they have an overlapping group of city ordinances. And that means, in a practical sense, that if you are ticketed and then return to the park or return to the public space, you can face criminal penalties. You can go to jail. The city has been accused of giving people bus tickets to just leave town and go somewhere else. At least one of the plaintiffs says that he sleeps in his truck, and that he has been forced to just move to different land that is not this county land or that sphere of land, management land, instead of the city land. So people are saying they don’t actually have an option. It’s not like there’s a place for them to go.

It just seems very peculiar when you hear, putting aside the legal issue for a moment, someone doesn’t have a home. There’s not enough shelter beds. You can’t sleep in a tent, but the option you have is housing behind bars because that is housing, I guess, in a manner of speaking. And I guess the question that people in the public might have is how can it be that there’s money for jails for this purpose, but not money for beds?

That’s another question where I don’t have an easy answer for that. Governor Newsom brings this up in his filing, which is that he sees this as there’s a long-term issue where cities and states are trying to build housing, to find housing and create it, but that he’s arguing in the short-term, cities should have the flexibility to figure out what to do if there are encampments or immediate health threats. And just to push back on that a bit, the plaintiffs argue that this is not about encampments. This is not about enormous areas where there are quasi-permanent settlements of people. This is about somebody who has a pillow and a blanket and wants to sleep and they don’t have any housing or place to go, and so they’re sleeping in a public park. And they are not allowed to do that.

Yeah. I want to talk about the legal issue here, because it’s quite interesting. So the Eighth Amendment is something that people may be familiar with. I’ll read it. It’s very short. It’s one of the shorter amendments. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” And most of the time, when we’re talking about the Eighth Amendment, it’s often in connection with the method of punishment, most usually in connection with the death penalty and how that is imposed, or conditions of incarceration can be cruel and unusual. Explain the theory behind how this issue, a very intractable social policy issue, winds up being an Eighth Amendment case.

Well, the argument by the plaintiffs is that it is cruel and unusual punishment to basically ban people from being able to sleep, that you are in fact criminalizing a status. You are criminalizing someone’s basic humanity that all humans need to sleep. And if someone does not have another place to go, there’s no shelter available, there’s no other alternative, that this case is about criminalizing someone’s basic needs.

So there’s this general understanding in the law that you punish conduct, not status, right?

That’s right.

And so the argument here is, I guess, the status would be unhoused, and I would presume that the other side would say, “No, it’s conduct,” which is sleeping in a public place where you’re forbidden to sleep. How do you think those arguments shake out with the court, and how might they shake out with the Supreme Court?

There are some cases that are repeatedly cited in the briefs about that very issue, about criminalizing status, that there’s a case … I think it’s from 1962. It’s a case coming out of California about somebody who is addicted to drugs, and that the status of being someone who’s addicted is not what can be punished, that using particular drugs can be punished but the fact that someone has an issue with addiction is a status.

And so the argument here is that it’s a parallel argument, that homelessness is a status and you’d have to take an action to be penalized, but that here, it is a status that’s being punished. As listeners might know, there’s a case that came out of Boise a few years ago, the Martin case, and the Supreme Court at that time was asked to take that case and they didn’t. And it’s quite a similar case. It’s slightly different, that those were criminal penalties and these are civil fines that could lead to criminal penalties, but we’re talking about the same issues here. And the Court, they’ve taken this case.

So what do you think that means? Did they take it to side with the city or to side with the homeless plaintiffs?

It’s always a little dangerous to say exactly what the Court is going to do.

I know, but it’s just you and me. How is it going to go?

I don’t know. I think that it is relevant that they did not take up this similar issue before and they are now, and that-

Well, it’s a new Court. Right. Those are new members.

It’s a new Court and a decidedly conservative Court. And in this case, you also had all these amicus clamoring for them to take the case. And those amicus came from across the political spectrum, and on the side of asking the Court to overturn the underlying decision and side with Grants Pass, that this is not cruel and unusual.

What’s interesting about this politically is … You talked about the Court being conservative. And it’s not 100% clear to me that one’s political ideology or partisan identity determines what they think about this issue. In fact, Gavin Newsom, I believe he’s a liberal democrat. Tell us what his position is on this.

So his position in his briefing, he says that he doesn’t disagree with the narrow holding from that Boise case, but that he thinks it’s been misapplied by lower courts into this broad-sweeping view that cities and states cannot respond to homeless encampments and to homelessness by citing or taking people into custody if there’s an immediate threat or immediate health concern. So he’s not totally agreeing.

Right, but as a general matter, he’s taking the side, generally speaking, of the city and in upholding their right to sweep these homeless people off the streets, which is not normally would be considered the progressive position, right?

Right. That’s the side that he’s come in on. That’s one of the reasons why I think this case is so interesting, is that it’s not … We see a lot of cases at the Court where there’s clear ideological divides and you could predict who’s coming in on what side, and this case has scrambled that a bit.

And do you think it’ll be scrambled on the Supreme Court as well? Or will those camps hold up in the normal and traditional way?

I don’t know. I think it’s hard to say. I’m seeing a lot of repetition in the briefs from the cities and those who agree with the city, that the Court needs to look at the history and traditions. So they’re definitely signaling to the conservatives a textualist argument. But I don’t know if that’s going to fly with the Court.

Let’s talk about what happens if the Court goes one way or another. If the Court sides with the city, what is that going to mean as a practical matter on the ground for the unhoused people in Oregon and elsewhere?

So the advocates I’ve talked with about homelessness say that it’s just going to mean more of the same, allowing crackdowns against people who are unhoused, who don’t have any other options, that it gives a green light to cities to say you can’t be anywhere on public property and you have to pick up and go elsewhere.

And what about in the other direction? If the Court doesn’t side with the city and declares that these policies in the statute violates the Eighth Amendment, what does that mean for cities like that one in Oregon and other places?

Well, the cities are claiming that that’s going to mean that their hands are tied to respond to the homelessness crisis in terms of clearing encampments, making sure that places … They repeatedly talk about playgrounds and public parks and people’s ability to go and feel safe in public areas, and that a ruling by the Court in support of the plaintiffs here, in support of the people who are homeless, would mean yet another tool for cities to try to wrestle with this ongoing crisis would be taken away from them.

You’ve investigated and written about and explored the issue of the homelessness crisis for some time. In your experience, what has been the arc, if there is any, in public consensus over the issue, how to solve the issue, the ways that are not good for solving the issue? Is there any trend line?

It’s complicated. There’s not a clear trend line, but one thing I would say is that, at least from the West Coast and California in particular, that there does seem to have been a shift in public pressure, particularly on Governor Newsom, from the more liberal constituents to address the crisis, to do something about it. I’ve seen that shift in the last few years, more support for trying to limit encampments. Especially in California, I noticed it around the issue of wildfires or fires in encampments as people became increasingly concerned about those issues and noticed more and more visible signs of homelessness.

Are there any other policies, aside from the issue we’ve been discussing as a legal matter, that you think are gaining traction in various places in the country, for the creation of low-cost housing or housing vouchers, or any other housing policy that bears on this question that you think is worth further discussion and understanding?

I would just note that housing is something that seems like such a clear, underlying issue in this case, although obviously it’s not the issue at all before the Court. It is not. It’s not an Eighth Amendment analysis. Housing is really, I think, at the heart of this whole case. One of the conservative groups that’s weighed in on this, their brief is really entirely focused on housing, and that this is a housing issue. Why is there not more housing? Can we not do this more quickly? Are there not alternatives for ways of creating places for people to be housed? Because that, ultimately, if you’re in Grants Pass and you don’t have a place to live, what is the solution? The solution of sending someone to jail for a few days, there are clear arguments about why that is not a long-term solution to helping people have a reliable place to stay.

Yeah. Have you had a conversation with somebody who’s in this predicament, who doesn’t have a home, that has struck you and that you think about?

I was talking with someone a couple of days ago, an advocate, about the people who would be affected by this, who are not individuals struggling with some kind of addiction, that that view is a really narrow view of who’s affected in Grants Pass and elsewhere, that there are families who are living in their cars, with children, trying to find an affordable place to stay with very few options. And I think that’s one of the things that has really struck me about reporting on this case, is that it’s not just one type of experience for people who don’t have a place to live, that it’s senior citizens and families and a wide array of people who have been priced out of reliable housing, especially on the West Coast.

So you didn’t want to predict how the Supreme Court will rule, which I respect. Can you give us an indication of when we can expect a ruling in either direction from the Supreme Court?

It’s looking like this is one of the last cases that they have selected for this term. And we never know exactly when a decision’s going to come down. They haven’t had oral argument yet in this case, but it’ll be likely by the end of June.

Abbie VanSickle of the New York Times. Thanks for focusing on this issue. And depending on what happens, maybe we can have a follow-up conversation.

I look forward to it. Thank you so much for having me.

Thank you. For more analysis of legal and political issues making the headlines, become a member of the CAFE Insider. Members get access to exclusive content, including the weekly podcast I host with former U.S. Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

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Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producer is Noa Azulai. And the CAFE team is Matthew Billy, Nat Weiner, Jake Kaplan, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.