Justice Clarence Thomas is truly living in the 16th century.
Now part of a Supreme Court conservative majority dragging American law backwards by overturning various precedents reflecting social progress, Thomas signaled in a recent decision he wants to reinstate status crimes.
The court didn’t do that in City of Grants Pass v. Johnson, issued Friday, June 28, 2024 (read the opinion here). In that case, the court ruled that Grant’s Pass, Oregon, can enforce its anti-camping ordinance, but didn’t say the city could arrest or cite people for homelessness.
In other words, Grant’s Pass can punish the act of camping, but not the status of being homeless. (“Status offense” is sometimes given a broader definition than just a law criminalizing a condition or characteristic as opposed to committing an act; see Wikipedia article here.)
So-called “status crimes” were held violative of the Eighth Amendment in Robinson v. California, a 1962 Supreme Court decision striking down a law making it a crime to be a drug addict.
Thomas wants to change that. He wrote in his Grants Pass concurrence that Robinson was “erroneous” (read story here). In fact, he went further and expressed a desire to throw out most Eighth Amendment jurisprudence.
This is medieval thinking, but isn’t a surprise coming from a court that cited a medieval manuscript in overturning Roe v. Wade, although Alito — not Thomas — wrote that opinion. But Alito and Thomas, the court’s two most conservative justices, think a lot alike, and voted alike in many high-profile cases. They couch their arguments in “originalism,” i.e. the idea that the Constitution means exactly what the Framers intended.
Until recently, the modern Supreme Court had rejected that approach, which shackles American society to late-1700s social conditions. The Constitution doesn’t work as a social contract, which I’ve argued it is, if you do that.
Handcuffing themselves this way robs the justices of their ability to adapt constitutional interpretation to the needs and imperatives of modern society — even if they correctly ascertain the Framers’ intent, which isn’t necessarily the case. In fact, that intent often defies clear ascertainment, because the Constitution was written by many men, and they didn’t always agree among themselves on what the words they wrote meant.
But if your objective is to impose medieval social mores and practices on 21st-century Americans, I guess that’s what you do. What’s next, reinstating debtor prisons?
Photo below: “Move along, pal, you’re not wanted here.” Justice Thomas wants to empower cops to kick homeless people and addicts off Planet Earth.
