Homelessness, social media, redistricting and federal agency regulation all had their moment under the gavel during a consequential and contentious Supreme Court term.

Each of those decisions-and several more-was scrutinized during a Wednesday session at NCSL's Legislative Summit, featuring Amy Howe, a reporter for SCOTUSblog and moderated by Susan Frederick, NCSL's senior federal affairs counsel.

Homelessness

The southwestern Oregon city of Grants Pass, population 38,000, became a focus of the national debate over homelessness when the Supreme Court upheld the city's public camping ban, which was used to keep unhoused people from camping on public property.

Some of the estimated 600 people experiencing homelessness each night in Grants Pass challenged the public camping ban, arguing that it violated the Eighth Amendment's ban on cruel and unusual punishment and that the law effectively criminalized the status of being homeless in the city.

Justice Neil Gorsuch, writing for a 6-3 majority, said the ban "makes it a crime to camp in public, and so it applies to everyone, whether you're unhoused or not," Howe says. "He rejected the argument that the public camping ban would effectively criminalize status."

The decision sparked a stinging dissent from Justice Sonia Sotomayor that was joined by the other two liberal justices, Elena Kagen and Ketanji Brown Jackson.

"[Sotomayor] said the idea that the public camping ban doesn't criminalize status is sort of angels dancing on the head of a pin," Howe says. "And the tone of her dissent is pretty strong. She sort of closes with the line, 'I hope someday in the near future the court will play its role in safeguarding constitutional liberties for the most vulnerable among us, for the court today abdicates that role.'"

Howe says she believes the decision closes the door on Eighth Amendment challenges to public camping bans, but Grants Pass and other cities could be limited by state laws restricting what they can do.

Regulatory Authority

Chief Justice John Roberts wrote the 6-3 decision overturning the so-called Chevron doctrine, which stated that courts should defer to a federal agency's interpretation of a statute as long as it was reasonable.

"He was really driving this ship this term," she says. "And he said when the Congress passed the Administrative Procedure Act (the federal law governing administrative agencies) back in 1946, it intended to codify what had been the practice dating all the way back to Marbury v. Madison in the early 19th century that courts should decide legal questions by applying their own judgment."

She adds, "He also said just because there are ambiguities in a statute doesn't mean that Congress intended to delegate to federal agencies the power to fill those gaps and determine what those ambiguities should mean. He said Congress intended for federal courts to decide these matters, even if it involves technical and scientific questions."

(Susan Frederick wrote about the Chevron doctrine in State Legislatures News.)

Racial Gerrymandering

In an opinion written by Justice Samuel Alito, the court reversed a finding that South Carolina had illegally employed racial gerrymandering in a congressional district.

"The state's Republican controlled Legislature had moved Black voters out of Nancy Mace's district into the neighboring district, and the voters brought a racial gerrymandering claim," Howe says.

"The Republican legislators countered that they were not moving the voters because of their race. They were moving them in essence because of their party affiliation and because they wanted to make the district a safer one for Republicans. The district had long been a Republican 'safe' seat. And then a Democrat had won it in a close race, then the Republicans took it back in a close race, and they wanted to make it a safe Republican seat again."

The lawmakers claimed they redrew the district because the voters were Democrats, not because they were Black. "And the idea that they were engaged in partisan gerrymandering rather than racial gerrymandering matters because back in 2018, the Supreme Court said that federal courts can't consider claims of partisan gerrymandering," Howe says. "And so it created this sort of conundrum for federal courts reviewing cases of racial gerrymandering, which is that if there's a close relationship between race and party affiliation, what do you do when you have allegations of racial gerrymandering?"

She adds, "The Supreme Court overturned a district court decision that it had been racially gerrymandered, saying, in essence, "There's going to be a really high bar in cases like these, and the challengers in this case have not met that bar. You're going to have to really disentangle race and politics."

View the entire livestreamed discussion.

Mark Wolf is a senior editor at NCSL.

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