Evolving Standards?
I read Mr. Jeffrey Wald’s recent article, “Has SCOTUS Evolved Beyond the Evolving Standards of Decency?” in the March/April 2025 issue, with great interest. While providing a summary of select Warren Court decisions, the article skirts core issues raised and addressed in the Supreme Court’s decision in City of Grants Pass, Oregon v. Johnson (2024). It also unfairly tarnished the majority’s decision in that case.
The case was originally brought not to contest the nature of constitutionally permitted punishment for continuous camping by the homeless in public parks. Rather, it was brought to challenge the criminalizing of that conduct at all, which the Supreme Court has long held is not the purpose of the Eighth Amendment. The relevant penalties in Grants Pass were minor fines escalating only after repeat violations into criminal charges and up to 30 days in jail. Such punishment seems neither cruel nor unusual by any reasonable measure, historical or otherwise.
While the article hails the Warren Court’s many groundbreaking criminal law cases, it ignores the fact that the majority opinion in Grants Pass explicitly consults and applies Warren Court jurisprudence in reaching its decision. In particular, the majority opinion accurately cites the Warren-era decision in Robinson v. California (1962) that prohibited using “mere status or condition” as grounds for criminal conviction but expressly allowed for the punishment of criminal conduct that might arguably arise from mere status or condition, such as addition or compulsion. The majority opinion also faithfully cited Justice Thurgood Marshall’s opinion from Powell v. Texas (1968) in the same vein, and Marshall was most certainly a Warren Court lion on criminal law issues. The majority opinion did not just rely “on history, tradition, Blackstone, and a mid-19th century case” as Mr. Wald unfairly asserts.
The majority opinion in Grants Pass showed proper deference to the reality that homelessness is a complex social issue and acknowledged that elected officials, not federal judges, should set the policies and approaches to resolving or ameliorating homelessness concerns. Mr. Wald may lament the current “conservative” Supreme Court, but it is a Court with a healthy respect for both separation of powers and federalism. The “evolving standards of decency” promoted by Trop v. Dulles (1968) in the context of Eighth Amendment jurisprudence don’t overthrow a legislature’s right to determine what conduct to criminalize or how to tackle thorny public policy challenges.
