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Notes -
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
SCOTUS held:
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:
There is a bit of meandering that I'll omit, but it comes back to:
and finally:
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.
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.
But it would take Justice Jackson to blow up our first real bombshell of the argument, following up on the Roberts' discussion of immutability:
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:
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?
I think the line between status / conduct is pretty clear. It just seems that some people want an expansion of the meaning of "status" so that certain types of conduct are protected.
I don't have the same legal brain as the justices. When I see that attempt at expansion it doesn't make me think that more things should have the protection of status, it makes me think "status" shouldn't have protection in the first place.
To a determinist everything is just someone's status. Their current status along the pre-determined timeline that is their life.
This exchange particularly frustrated me:
That is exactly what municipalities wish they could do. "Just tell us what laws we are allowed to write that allow us to clean up our streets?!" That is not how the Supreme Court works though. Municipalities instead have to play a game where they write laws that maybe might work, and then the worst versions of those laws get challenged somewhere else with case details picked by people that hate those kinds of laws. Then it spends half a decade in court and then some asshole justice lectures them about how 'they should have just come here honestly trying to address the problem'. Meanwhile the justices and everyone involved will spend a bunch of time going over past court decisions on this topic, the same court decisions that nearly everyone agrees were decided badly.
This is insanity.
In this case, the intended rule is "You can't clean up your streets AT ALL until you solve the homeless problem in a particular way -- that is, provide shelter to all of them at public expense".
Which is potentially the rule no longer, because if the homeless don't want the shelter for some reason you are screwed.
I'm not sure how the current precedent is worded, but any rule along the lines of "you can only ban sleeping on the streets to people whom you offer 'acceptable' shelter" of course is going to have a lot of arguments over what constitutes "acceptable" shelter. Which should probably be below a studio apartment and might be below what is acceptable to rent out (although the laws setting overly high minimums on what's acceptable to rent out are a non-trivial factor in the rise of homelessness, so, uh, those should probably be lower, too).
But we should definitely set the line somewhere and actually enforce public camping laws if a reasonable attempt has been made to get the person into "acceptable" housing. And I thought that was more or less what the precedent said.
That rule is insane, because it basically mandates a massive ongoing expenditure for all municipalities.
It also opens up a bunch of other potentially insane rules that the justices pointed out.
Can you only ban public defecation if there are publicly available toilets?
Can you only ban public cooking fires if there is cooked food available?
Can you only ban theft if welfare money is available?
Can you only ban murder if sufficient mental health care is available?
This feels like Copenhagen Ethics written into law. You can't try to partially fix a problem, you can only fully fix it.
... I... kinda agree with this? If there are no public toilets and people with no alternative are shitting on the ground, I'm not going to blame the people shitting on the ground. I'm going to either move to another city or lobby the municipality for public toilets.
Maybe I'll look for some other non-public solution, but what should it be? Prison? Well pragmatically that is also a massive ongoing expenditure for all municipalities. And- those prisons are going to need bathrooms!
The way I see it, dealing with the fact that humans need to shit is mandated by reality. Not by any law.
Yes, the alternative is prison.
There has been an ongoing debate between enforcement and cleanup.
Enforcement is mean. And it looks expensive on a per incident basis. But the main benefit over cleanup is that it stops additional people from adding to the problem.
Time and again people have opted to drop enforcement thinking that the current cleanup costs aren't as high as enforcement, only for them to be completely overwhelmed by cleanup costs when there is zero enforcement.
In the case of California cities they are now drowning in human shit on their sidewalks and streets as a result of this decision.
Well maybe they should have more public bathrooms so as to reduce cleanup costs. I don't get why you're considering the choice where we remove this option viable... I agree that there should be enforcement. It should just be enforcement of people actually using the public bathrooms and not smearing shit on the walls. This will be cheaper than imprisoning 100% of the people who lose their homes because you unilatterally refuse to provide bathrooms.
This would be a rather perverse system. The only benefit I can see is that it might make people too terrified to take any risks that might render them homeless. But that sounds like it will cause mental anxiety that will increase the number of homeless and reduce economic growth to me.
Imprisoning them all gets them off the streets, which might make sense as a stopgap measure. But if we don't solve the issues that created them we just get more homeless.
And also now you've removed all the public bathrooms. So. I don't really want to live in your city because I also need to poop sometimes.
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