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Culture War Roundup for the week of April 22, 2024

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STATUS GAMES

When people talk about "status games" 'round these parts, they're normally referring to our obsession with relative social status and the games that we play in order to increase it. However, this morning, I listened to oral arguments in City of Grants Pass v. Johnson, a case about a municipal ordinance, from a town in Oregon, prohibiting people from sleeping in public, at least with some 'aggravating' factor, like having a blanket. Of course, as is probably traditional for me at this point, I hardly even want to talk about the specifics of this case, at least not concerning homelessness. Instead, I'd like to jump off into questions of categories (which, uh, I guess are made for man?), agency, and the games we play with categories like 'status'.

The background is a 1962 case, Robinson v. California, referred to in all blockquotes from the Court as just "Robinson", which considered

A California statute makes it a misdemeanor punishable by imprisonment for any person to "be addicted to the use of narcotics," and, in sustaining petitioner's conviction thereunder, the California courts construed the statute as making the "status" of narcotic addiction a criminal offense for which the offender may be prosecuted "at any time before he reforms," even though he has never used or possessed any narcotics within the State and has not been guilty of any antisocial behavior there.

SCOTUS held:

As so construed and applied, the statute inflicts a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

Details aren't the most important, but a vague sense of that backdrop is. If someone is "addicted to narcotics", that's considered just a "status", not actual behavior or conduct that can be regulated by the state.

This status/conduct categorical divide has a long history of being quite confusing, and this confusion was on full display at the Court. A Ctrl+F of the transcript shows 121 mentions of the word "status", and many of them are trying to figure out what counts. I collected more blockquotes than I could possibly clean up or feel comfortable bombarding TheMotte with, so I'll try to be sparing. First off, Justice Kagan asking questions of Ms. Evangelis, who is arguing on behalf of the city:

JUSTICE KAGAN: So can I talk about that, Ms. Kapur? So taking Robinson as a given, could you criminalize the status of homelessness?

MS. EVANGELIS: Well, I have a couple points to that.

JUSTICE KAGAN: It's just a simple question.

MS. EVANGELIS: So Robinson doesn't address that and I think it's completely distinguishable. So Robinson was a --

JUSTICE KAGAN: Could you criminalize the status of homelessness?

MS. EVANGELIS: Well, I don't think that homelessness is a status like drug addiction, and Robinson only stands for that.

JUSTICE KAGAN: Well, homelessness is a status. It's the status of not having a home.

MS. EVANGELIS: I actually -- I disagree with that, Justice Kagan, because it is so fluid, it's so different. People experiencing homelessness might be one day without shelter, the next day with. The federal definition contemplates various forms.

JUSTICE KAGAN: At the period with which -- in the period where -- where you don't have a home and you are homeless, is that a status?

MS. EVANGELIS: No.

There is a bit of meandering that I'll omit, but it comes back to:

MS. EVANGELIS: The statute does not say anything about homelessness. It's a generally applicable law. One more -- it -- it's very important that it applies to everyone, even --

JUSTICE KAGAN: Yeah, I -- I got that.

MS. EVANGELIS: -- people who are camping.

JUSTICE KAGAN: But it's a single person with a blanket.

MS. EVANGELIS: And --

JUSTICE KAGAN: You don't have to have a tent. You don't have to have a camp. It's a single person with a blanket.

MS. EVANGELIS: And sleeping in conduct is considered -- excuse me, sleeping in public is considered conduct. And this Court -- this Court in Clark discussed that, that that is conduct. Also, the federal regulations --

JUSTICE KAGAN: Well, sleeping is --

MS. EVANGELIS: -- are very --

JUSTICE KAGAN: -- a biological necessity. It's sort of like breathing. I mean, you could say breathing is conduct too, but, presumably, you would not think that it's okay to criminalize breathing in public.

MS. EVANGELIS: I would like to point to the federal regulations which I brought up.

JUSTICE KAGAN: And for a homeless person who has no place to go, sleeping in public is kind of like breathing in public.

and finally:

JUSTICE KAGAN: -- I'll tell you the truth, Ms. Kapur. I think that this is -- this is a super-hard policy problem for all municipalities. And if you were to come in here and you were to say, you know, we need certain protections to keep our streets safe and we can't have, you know, people sleeping anyplace that they want and we can't have, you know, tent cities cropping up, I mean, that would create one set of issues. But your ordinance goes way beyond that. Your ordinance says as to a person -- and I understand that you think it's generally applicable, but we only come up with this problem for a person who is homeless, who has the status of homelessness, who has no other place to sleep, and your statute says that person cannot take himself and himself only and, you know, can't take a blanket and sleep someplace without it being a crime. And -- and -- and that's, you know -- well, it just seems like Robinson. It seems like you're criminalizing a status.

Kagan may be the smartest of the liberal Justices, so it's probably no surprise that I think she got the closest to a conceptualization of status that is friendly to the left in this case. Unsurprisingly, though, "Republicans Pounce". Justice Gorsuch said that, "[T]he distinction between status and conduct is a slippery one and that they're often closely related," and had what was perhaps the most comprehensive exchange on the topic with Mr. Kneedler, who is the Deputy Solicitor General, weighing in on the case on behalf of the federal government, who was technically supporting neither party, but is obviously in practice representing the equities of the Biden administration portion of the left.

JUSTICE GORSUCH: Mr. Kneedler, I want to probe this a little bit further because it -- it does seem to me the status/conduct distinction is very tricky. And I had thought that Robinson, after Powell, really was just limited to status. And now you're saying, well, there's some conduct that's effectively equated to status and -- but you're saying involuntary drug use, you can regulate that conduct. That doesn't qualify as status. You're saying compulsive alcohol use, you can regulate that conduct in public. Public drunkenness, even if it's involuntary, that doesn't qualify as status, right?

MR. KNEEDLER: Right.

JUSTICE GORSUCH: You're saying you can regulate somebody who is hungry and has no other choice but to steal. You can regulate that conduct even though it's a basic human necessity, and that doesn't come under the -- under the status side of the line, right?

MR. KNEEDLER: Yes.

JUSTICE GORSUCH: Okay. But, when it comes to homelessness, which is a terribly difficult problem, you're saying that's different and -- because there are no beds available for them to go to in Grants Pass. What -- what about someone who has a mental health problem that prohibits them -- they cannot sleep in -- in a shelter. Are they allowed to sleep outside or not? Is that status or conduct that's regulable?

MR. KNEEDLER: I -- I think the -- the question would be whether that shelter is available.

JUSTICE GORSUCH: It's available.

MR. KNEEDLER: Well, no, available to the individual.

JUSTICE GORSUCH: It's available to the individual.

MR. KNEEDLER: But --

JUSTICE GORSUCH: It's just because of their mental health problem, they cannot do it.

MR. KNEEDLER: I -- I think there might be -- I mean, that's -- the mental health problem --

JUSTICE GORSUCH: Status or conduct?

MR. KNEEDLER: The mental health situation is itself a status.

JUSTICE GORSUCH: Right, I know that.

MR. KNEEDLER: Yes. But -- but if the

JUSTICE GORSUCH: It has this further knock-on effect on conduct. Is that regulable

MR. KNEEDLER: I -- I --

JUSTICE GORSUCH: -- by the state or not?

MR. KNEEDLER: -- I -- I think that -- I think if the --

JUSTICE GORSUCH: All the -- you know, alcohol, drug use --

MR. KNEEDLER: Right, right.

JUSTICE GORSUCH: -- they have problems too and that that -- and -- and -- but you're saying that conduct is regulable. How about with respect to this pervasive problem of -- of persons with mental health problems?

MR. KNEEDLER: I -- I think, in a particular situation, if the -- if the -- if the person would engage in violent conduct as --

JUSTICE GORSUCH: No, no, no, don't mess with my hypothetical, counsel.

(Laughter.)

JUSTICE GORSUCH: I like my hypothetical. I know you don't. It's a hard one, and that's why I'm asking it. I'm just trying to understand --

MR. KNEEDLER: I -- I --

JUSTICE GORSUCH: -- the limits of your line.

MR. KNEEDLER: I think it would depend on how serious the offense was on the -- on the individual.

JUSTICE GORSUCH: It's -- it's -- it's a very serious effect. The mental health problem is serious, but there are beds available.

MR. KNEEDLER: Well, what I was trying to say, it would depend on how serious being required in -- to -- to go into that facility was on the person's mental -- if it would make his mental health situation a lot worse, then that may not be something that's --

JUSTICE GORSUCH: So that's status -- that falls on the status side?

MR. KNEEDLER: Well, I -- I -- I -- I guess you could put it that way, but I -- I guess what I'm saying is that --

JUSTICE GORSUCH: I -- that's what I'm wondering. I don't -- I'm asking you.

MR. KNEEDLER: Well -- JUSTICE GORSUCH: I really am just trying to figure out --

MR. KNEEDLER: No. You could view that as status or --

JUSTICE GORSUCH: You're asking us to extend Robinson, and I'm asking how far?

MR. KNEEDLER: Well, what I was going to say, you could -- you could think of it as status, but I think another way to think about it, and this is our point about an individualized determination, is that place realistically available to that person because --

JUSTICE GORSUCH: It is in the sense that the bed is available --

MR. KNEEDLER: I know that it's --

JUSTICE GORSUCH: -- but not because of their personal circumstances.

MR. KNEEDLER: Right. Right. And that's -- and that's my point. It -- it's available in a physical sense. It may be available to somebody else, but requiring an individualized determination might include whether that person could cope in that setting. That's the only --

JUSTICE GORSUCH: So that -- so that might be an Eighth Amendment violation?

MR. KNEEDLER: Because it may not -- yes, because it's not available.

JUSTICE GORSUCH: So that's an -- it's an Eighth Amendment violation to require people to access available beds in the jurisdiction in which they live because of their mental health problems?

MR. KNEEDLER: If -- if going there would -- would --

JUSTICE GORSUCH: How about if they have a substance abuse problem and they can't use those substances in the shelter? Is that an Eighth Amendment --

MR. KNEEDLER: That is -- that is not a -- that is not a sufficient --

JUSTICE GORSUCH: Why? Why? They're addicted to drugs, they cannot use them in the shelter. That's one of the rules.

MR. KNEEDLER: Well, if they -- if they -- if it's the shelter's rule, then they have no -- they -- they -- they can't go there if they're -- if they're addicted. That's not -- that's not --

JUSTICE GORSUCH: So that's an Eighth -- that's an Eighth Amendment violation?

MR. KNEEDLER: Well, no, the -- the -- the Eighth Amendment violation is prohibiting sleeping outside because the only shelter that is available --

JUSTICE GORSUCH: Is not really available to that person?

MR. KNEEDLER: -- won't take them -- won't take them, yes. And that's an individualized determination.

JUSTICE GORSUCH: Same thing with the alcoholic?

MR. KNEEDLER: Yes.

JUSTICE GORSUCH: Okay. So the alcoholic has an Eighth Amendment right to sleep outside even though there's a bed available?

MR. KNEEDLER: If -- if the only shelter in town won't take him, then I think he's in exactly -- he's in the same -- he's in the same condition. And there can be all sorts of reasons, and the City doesn't normally --

...

JUSTICE GORSUCH: How about if there are no public bathroom facilities? Can -- do people have an Eighth Amendment right to defecate and urinate outdoors?

MR. KNEEDLER: No, we -- we --

JUSTICE GORSUCH: Is that conduct or is that status?

MR. KNEEDLER: I -- it's, obviously, there -- there is conduct there and we are not suggesting that cities can't enforce their --

JUSTICE GORSUCH: Why not, if there are no public facilities available to homeless persons?

MR. KNEEDLER: The -- the -- that situation, you know, candidly, has never arisen. And whether or not there -- I mean, in the litigation as I've seen. But no one is suggesting and we're not suggesting that public urination and defecation laws cannot be enforced because there are very substantial public health reasons for that.

JUSTICE GORSUCH: Well, there are substantial public health reasons with drug use, with alcohol, and with all these other things too.

MR. KNEEDLER: And they can all be --

JUSTICE GORSUCH: And you're saying the Eighth Amendment overrides those. Why not in this circumstance right now?

MR. KNEEDLER: No, I'm not -- I'm not saying the Eighth Amendment overrides the laws against drug use.

JUSTICE GORSUCH: Oh, I know that.

MR. KNEEDLER: Oh, I'm sorry.

JUSTICE GORSUCH: I know that.

MR. KNEEDLER: No, I misunderstood what you --

JUSTICE GORSUCH: That one -- that one the government wants to keep. I got that.

MR. KNEEDLER: No, I misunderstood your question. Sorry.

JUSTICE GORSUCH: Yeah. Last one. How about -- how about fires outdoors? I know you say time, place, and manner, but is there an Eighth Amendment right to cook outdoors?

MR. KNEEDLER: No. I -- I -- I -- I think what -- what --

JUSTICE GORSUCH: That's -- that's an incident -- a human necessity every person has to do.

MR. KNEEDLER: But this -- but this is one -- this is one of those things that, you know, is taken care of on the ground as a practical matter. There are restaurants where someone can go. There are --

JUSTICE GORSUCH: Well, no, no, we're talking about homeless people.

MR. KNEEDLER: No.

JUSTICE GORSUCH: They're not going to go spend money at a restaurant necessarily. Let's --

MR. KNEEDLER: Well, there -- there may be inexpensive places. Some people get --

JUSTICE GORSUCH: Let's say there isn't, okay?

MR. KNEEDLER: And --

JUSTICE GORSUCH: Let's say that there is no reasonable --

MR. KNEEDLER: And -- and the local community --

JUSTICE GORSUCH: Do they have a right to cook? They have a right to eat, don't they?

MR. KNEEDLER: They have -- they have a right to eat, a right to cook if it entails having a fire, which I think it -- it -- it probably -- it probably would, but -- but, as I said, the -- the -- the eating, the feeding is taken care of in most communities by nonprofits and churches stepping forward --

JUSTICE GORSUCH: But if there isn't

MR. KNEEDLER: -- as they have for 200 years.

JUSTICE GORSUCH: -- but, if there isn't, there's an Eighth Amendment right to have a fire?

MR. KNEEDLER: No, no, we are not saying there's an Eighth Amendment --

JUSTICE GORSUCH: Well, I thought you just said there was.

MR. KNEEDLER: Well, there -- there's food that you can eat without cooking it. I mean, they -- and they could could get a handout from the -- from a -- from an individual that, you know, people can beg for money. I mean, there are -- there are ways that this works out in practice.

Oof, that was long and covered a lot. Gorsuch would go on to suggest that the Court should just push the case back the State for a "necessity" analysis and not "get into the status/conduct stuff that -- that Robinson seems to invite." Roberts, meanwhile, went after immutability in a colloquy with Ms. Corkran, representing the class of homeless people challenging the law.

CHIEF JUSTICE ROBERTS: A number of us, I think, are having difficulty with the distinction between status and conduct. You'll acknowledge, won't you, that in those terms, there's a difference between being addicted to drugs and being homeless? In other words, someone who's homeless can immediately become not homeless, right, if they find shelter.

Someone who is addicted to drugs, it's not so -- so easy. It seems to me that in Robinson, it's much easier to understand the drug addiction as an ongoing status, while, here, I think it is different because you can move into and out of and into and out of the status, as you would put it, as being homeless.

MS. CORKRAN: Yeah. So it's interesting, we today understand addiction as an immutable status. In Robinson, the Court suggested that someone might be recovered and no longer have the status of addiction. So the Robinson Court wasn't thinking about addiction as something that couldn't change over time.

CHIEF JUSTICE ROBERTS: Well, that may limit the applicability of Robinson to a different situation, but what is the -- I mean, what is the analytic approach to deciding whether something's a status or a situation of conduct?

MS. CORKRAN: So the question is a status is something that a person is when they're not doing anything. So being addicted, having cancer, being poor, are all statuses that you have apart from any conduct.

CHIEF JUSTICE ROBERTS: Having cancer is not the same as being homeless, right? I mean, maybe I'm just repeating myself because homelessness can -- you -- you can remove the homeless status in an instant if you move to a shelter or situations otherwise change. And, of course, it can be moved the other way as well if you're kicked out of the shelter or whatever. So that is a distinction from all these other things that have been labeled status, isn't it?

MS. CORKRAN: I -- I don't think so because, you know, a cancer patient can go into remission, they no longer have that status. I don't think -- I mean, I don't think there's any question that being poor is a status. It's something you are apart from anything you do. It's a status that can change over time, and at that point, you wouldn't be a part of the class, but I don't think it changes the fact that it is a status. And what Robinson found so offensive about status-based conduct --

But it would take Justice Jackson to blow up our first real bombshell of the argument, following up on the Roberts' discussion of immutability:

JUSTICE JACKSON: Can a person go from being addicted to drugs to not being addicted to drugs?

MS. CORKRAN: So I think under common -- as we think about it in terms of modern medicine, the answer is no. But the Robinson Court certainly thought that was the case, right? Sixty years ago, we didn't have the same understanding of addiction as we do now.

JUSTICE JACKSON: So your view of Robinson is that it doesn't really matter, the permanency of the condition; it's still a status?

MS. CORKRAN: Right. The Robinson Court did not think that the permanency mattered because it thought that addiction was a status that could change.

In summary, the Robinson Court was actually wrong on the facts. They thought that people could go from being addicted to drugs to not being addicted to drugs. So, they clearly didn't care all that much about permanency. But BOOM goes the claim that, apparently the New Correct Lefty Science has determined that people don't ever transition from being addicted to drugs to not being addicted to drugs. I guess I heard it here first. My years of shouting at clouds that Scott pointed out that basically all honest alcoholism rehabilitation studies fail to outperform a placebo and that narcotics rehabilitation studies don't even use measures like "stops taking narcotics" in favor of measures like "causes trouble for other people while using narcotics somewhat less often" is finally being adopted! (Frankly, in far stronger form that I would have even stated. I wouldn't say that people can't stop being addicted to drugs; just that we can't magically impose a "treatment" regime that is going to result in them stopping.) Wow! Was the failure of Oregon's decriminalization experiment so spectacular that we're no longer going to have endless claims that we can make everything completely legal, so long as we pray to the god of providing "treatment" (without any serious consideration of how this is going to happen or whether it will actually do anything)? I can hardly believe it.

As amazing as this concession to Justice Jackson was, Alito somehow at least comes close:

JUSTICE ALITO: Well, see, the problem is that once you move away from the definition that makes the inquiry basically tautological, then you get into the question of assessing the closeness of the connection between the status and the conduct. And you do run into problems with the person who's a kleptomania -- a kleptomaniac or a person who suffers from pedophilia. So how do you distinguish that? How does the Court assess how close the connection has to be?

MS. CORKRAN: So -- so, for both of those categories, the -- the -- the status is defined -- I don't know if status is the right word there -- being a pedophilia or having pedophilia is defined by the urge that you have, not by your conduct, and acting on that urge. So, if someone were to act on that urge, that tight causal nexus on why they didn't have access to shelter, then they would be outside of our claim.

What's this?!?! A distinction between "having an urge" and conduct?!? In the realm of sexuality? Say it isn't so! How many times can The Lefties That Be just boldly admit that the entire slew of homosexual behavior to gay marriage cases were based on a fundamental lie?!

The more cynical among us might observe that status/conduct games seem to be yet another way that folks run away from agency, shielding anything that they like in terms of it "being who you are" or things that just "happen to you". There is no real theory here, and most attempts to justify it are pretty philosophically incoherent. It doesn't seem like the Court is going to buy this particular extension of The Game, but why wouldn't they try? They've had all these other victories, including effectively banning Christian groups from campuses, by substituting "status" in for "conduct/belief". Why are the Status Games so powerful?

Robinson should just be overturned in its entirety, sidestepping all this. The Cruel and Unusual Punishment clause is about the penalties which can be imposed for lawbreaking, not about the actions which can be forbidden. There's nothing about status or conduct in there. But the court is too conservative to overturn bad non-conservative precedent (except on abortion)

In this Court counsel for the State recognized that narcotic addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily. We hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.

I think the proportionality argument is pretty solid, even though it doesn’t give us a hard limit.

Even one day in prison would be a cruel and unusual punishment for the "crime" of having a common cold.

Who made this argument? I'm not generally of a "it's just like the common cold" take on the pandemic, but I'm assuming a SCOTUS justice would at least see the parallel hypothetical about house arrest for (potentially) having a contagious disease. If nothing else, it seems like an interesting set of tea leaves to read about how future cases might go.

That’s from Robinson v. CA, so…Justice Potter Stewart, d.1985.

I don’t think quarantines fit the bill. In theory, they criminalize the conduct of going somewhere while (potentially) having such a disease, which is distinct from criminalizing the disease itself. Note that in Robinson the man arrested was expressly not taking any unusual actions.

In practice, did any of the lockdown ordinances actually threaten prison? I know there were enforced business shutdowns, presumably enforced via fines. I didn’t live somewhere which actually kept you in your house.

In theory, they criminalize the conduct of going somewhere while (potentially) having such a disease, which is distinct from criminalizing the disease itself.

Ah, so criminalizing sleeping while homeless should be fine. Or walking through town while a drug addict, to go to the Robinson case.

No, this is all sophistry; the 8th Amendment, having been stretched this much, can be said to cover or not cover any given case -- and it will be, based on other criteria. In this case, likely mostly misplaced sympathy for the homeless on the part of Kavanaugh and Barrett, and a corresponding lack of concern for anyone else on their part and that of the leftist justices.

Why do you think it’s misplaced sympathy and not, I dunno, doing their jobs?

Surely it’s not just because they’ve disagreed with your intuition.

Why do you think it’s misplaced sympathy and not, I dunno, doing their jobs?

From ScotusBlog:

But Justice Brett Kavanaugh was at least initially dubious that reversing the 9th Circuit’s decision and allowing the city to enforce its ordinances would make a difference in addressing the homelessness problem. How would your rule help, he asked Evangelis, if there are not enough beds for people experiencing homelessness? Kavanaugh returned to this point a few minutes later, asking Evangelis how sending people to jail for violating the city’s ordinances would help to address the homelessness problem if there are still no beds available when they get out. Such individuals, he observed, are “not going to be any better off than you were before.”

This is not the issue at all! The questions contain within them the implication that the laws have to make the homeless people better off. And thus the implication that somehow the Constitution protects the interests of the homeless over and above the other people who want to use the parks and public spaces that the law actually is in the interests of. This is just sympathy for the wretched, not "doing their jobs".

Do you think the law is going to be struck down by SCOTUS? That would be one hell of a blackpill.

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