Two Supreme Court rulings on Friday that dramatically change the law are profound reminders that presidential elections matter enormously for all of us. Like so many of the court’s recent actions, these were 6-3 rulings, with the three justices appointed by President Trump in the majority. These decisions — as with the overruling of Roe vs. Wade and the expansion of gun rights in recent years — simply would not have happened if Hillary Clinton had won the presidency in 2016 and she had picked three justices.
In other words, these decisions cannot be explained by precedent or interpretive methodologies. They are simply a matter of conservative justices imposing conservative ideology to come to conservative results.
In City of Grants Pass vs. Johnson, the court held that a municipality may make it a crime for people to sleep in public even if there are not adequate 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 ordinances meant to keep unhoused individuals from sleeping on public property. The 9th Circuit Court of Appeals declared this unconstitutional and concluded: The “City of Grants Pass cannot, consistent with the Eighth Amendment” — which prohibits cruel and unusual punishment — “enforce its anti-camping ordinances … for the mere act of sleeping outside with rudimentary protection from the elements … when there is no other place in the City for them to go.”
The 9th Circuit was clearly correct as a matter of law: It violates the 8th Amendment to punish a person for an activity — sleeping — that is essentially beyond his or her control. And it also was correct as a matter of public policy. No city is going to solve homelessness by criminally prosecuting the unhoused. Imposing fines that homeless people cannot pay or putting them in jail for brief times is not going to get them permanently housed.
Justice Neil M. Gorsuch wrote the opinion reversing the 9th Circuit. Justice Sonia Sotomayor in a dissent explained the cruelty of making it a crime to sleep in public even when there is nowhere else available: “It is possible to acknowledge, and balance the issues facing local governments, the humanity and dignity of homeless people, and our constitutional principles. Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.”
Another decision on Friday that clearly represents conservative ideology involved a more technical area of law. In 1984, in Chevron U.S.A. vs. Natural Resources Defense Council, the Supreme Court unanimously held that federal courts should defer to federal agencies when they interpret ambiguous federal statutes. This means, for example, that a court should defer to the judgment of the Environmental Protection Agency when that agency sets rules under the Clean Air Act for how much of a particular pollutant can be put into the air. “Chevron deference,” as it is known, is based on the idea that Congress cannot legislate with specificity for every matter and purposefully leaves many details to the expertise of the federal agency. Especially with regard to technical matters, the agency and not the courts are the experts.
But businesses long have opposed Chevron deference. They want to make it easier to challenge agency regulations in court. On Friday, the Supreme Court gave them their wish and expressly overruled the Chevron decision. Chief Justice John G. Roberts Jr. wrote for the court: “The reviewing court — not the agency whose action it reviews — is to decide all relevant questions of law and interpret … statutory provisions.”
As it did when it overruled Roe vs. Wade, the Roberts court again gives no weight to precedent in discarding a 40-year-old decision that has been a cornerstone of administrative law. The decision represents a huge shift in power from federal agencies to the courts. As Justice Elena Kagan said in her dissent, it will produce a “large scale disruption” because Chevron deference has been a crucial part of “modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”
Both of Friday’s decisions will have a real impact on real people’s lives. The unhoused now face criminal sanctions for engaging in the biological necessity of sleeping in public when there is nowhere else to sleep. Agency rules to protect the public’s health and safety are much more likely to be overturned.
The explanation for these rulings is not to be found in anything in the law; it can only be explained by who is on the Supreme Court. As the public focuses on the 2024 presidential election, especially in light of Thursday night’s debate, it is crucial to remember that the most long-lasting legacy of any president is who he or she puts on the Supreme Court.
Erwin Chemerinksy is a contributing writer to Opinion and dean of the UC Berkeley School of Law.
