From Gavel to Gravel: The Impact of Grants Pass v. Johnson on California Homelessness Policy

In the words of Judge Milan Smith Jr., homelessness is “the defining public health and safety crisis in the western United States” today. In no state is homelessness more pressing than in California, where over 180,000 people experience homelessness on a given night. While California has kept homelessness roughly constant for decades, the state saw an unexpected turning point in 2018. Since then, the number of people experiencing homelessness per capita has skyrocketed, increasing by over 40% from 2018 to 2023. 

As the chart reflects, this spike was unique to California, indicating that the cause was a California-specific issue. However, many of the typical indicators of homelessness in the state showed positive signs in the late 2010s, with California’s average rent prices decreasing, minimum wage increasing, and unemployment historically low. Thus, in order to explain the significant increase in homelessness after 2018, we must look to external factors.

On September 4, 2018, the Ninth Circuit Court of Appeals issued its decision in Martin v. Boise, declaring that the 8th Amendment prohibited states from arresting or fining people experiencing homelessness unless they provided adequate shelter beds. This order took effect across nine Western states, including California, the largest affected.

The Martin decision greatly constrained major cities from responding to their respective homelessness crises. For example, a federal court blocked San Francisco from enforcing six regulations that gave the city “the power to resolve encampments [and] encourage unhoused individuals to accept shelter.” Without the ability to enforce their own laws, San Francisco observed a significant decrease in cooperation with public officials, ultimately causing a drastic rise in homelessness due to the city’s inability to fill shelters and affordable housing units. This same pattern played out across several Western cities, leading to the spike in homelessness across California reflected in the graph above.

Grants Pass provides new freedom for states to take action.

Frustrated by the limits Martin placed on their responses to homelessness, Western cities pushed the U.S. Supreme Court to overturn the case. In Grants Pass v. Johnson (2024), the Court did so. Writing for the majority, Justice Neil Gorsuch argued that policy decisions on the complex issue of homelessness should be made by democratically-elected governments rather than an unelected federal judiciary.

Yes, people will disagree over which policy responses are best;…they may find certain responses more appropriate for some communities than others. But in our democracy, that is their right. Nor can a handful of federal judges begin to match the collective wisdom the American people possess in deciding how best to handle a pressing social question like homelessness. (Neil Gorsuch, Grants Pass v. Johnson)

By removing homelessness policy from the court system, Gorsuch granted local governments greater freedom to experiment with novel policy approaches without restrictions from courts or the federal government. Despite the conservative reasoning in this decision, the additional freedom presents an opportunity for liberal cities and states to drastically reform homelessness policy without court interference. State and local governments, particularly in California, must take up this mandate to reverse the worrying trend of homelessness.

In the wake of Grants Pass, California has stepped in the wrong direction.

Reveling in his newfound freedom following Grants Pass, California Governor Gavin Newsom issued a multi-part executive order to remove homeless encampments across the state. Newsom ordered state agencies to forcibly remove all encampments on state-owned land and threatened to cut funding from city and local governments who refused to follow his lead. City officials across California responded in support, saying the effort would increase public safety and address important health concerns in their cities.

One question arises about this policy: why did Governor Newsom, a top voice in the Democratic Party, endorse the same mass removal strategy as conservative lawmakers? The answer lies in his approval ratings. A 2022 poll by the UC Berkeley Institute of Governmental Studies found that 66% of Californians described Newsom’s prior response to homelessness as “poor” or “very poor.” Voters clearly sought a change in Newsom’s tactics regarding homelessness, and he provided one. To win voter support, Newsom didn’t need a long term solution–just the appearance of one. Encampment removals accomplish this objective by removing people experiencing homelessness from high visibility areas and dispersing them across a city.

However, encampment removals are deeply flawed because they have little long-term effect and mistreat people experiencing homelessness. As one 2024 study found, clearing encampments in Los Angeles resulted in a temporary decrease in people experiencing homelessness in an area, but numbers returned to previous levels within two to three months. In addition, the study found that encampment removals often left people “literally unsheltered,” meaning they had no access to a vehicle or tent for shelter or warmth–an inhumane condition on cold winter nights. Yet, Newsom accepts this harm as a price to pay for his approval ratings. Governor Newsom’s encampment removals may please voters, but his approach is ineffective and cruel to people experiencing homelessness.

Amidst harmful state action, local organizations can help.

In contrast to Governor Newsom’s inhumane measures, San Francisco’s Recreation and Parks department has pioneered a more effective, humane approach to homelessness. In 2015, the department hired “outreach rangers” to help people experiencing homelessness find city services. These rangers practice personal outreach: working with individuals over several months to find, apply for, and secure housing or rehabilitation. Through this humane approach, rangers individually help dozens of people experiencing homelessness each year rather than simply hiding them from sight. Local neighborhood authorities have adopted similar outreach teams across San Francisco, an approach that other California cities should adopt instead of Newsom’s.

Beyond social outreach, legal organizations can help defend people experiencing homelessness from unfair prosecution. In Grants Pass, Justice Gorsuch suggested a “necessity defense” could protect people experiencing homelessness, meaning lawyers could argue that an individual violated a law–in this case, sleeping outside–because they had no other option. A California appeals court recently upheld this defense in People v. Wood, allowing it on a case-by-case basis. Although yet to be successfully implemented, pro bono legal organizations and public defenders should expand their use of this defense to stall the criminalization of homelessness and, in doing so, give cities time to find permanent solutions.

In an era of extreme judicial scrutiny, Grants Pass gives California lawmakers a rare chance to implement their desired legislation without restriction. Although Governor Newsom’s actions since Grants Pass have proved disappointing, local measures provide an effective and humane solution for California to move forward. With the cooperation of state lawmakers, local officials, and legal defense organizations, Californians may finally see homelessness decrease for the first time in a decade.

Image Source: Loren Elliott / AFP