A homeless man sleeps on the street.October 24, 2019. (Mohamed al-Sayaghi/Reuters)

The Ninth Circuit’s decision in Martin v. City of Boise is curious, to say the least. It’s a shame the Court declined to hear an appeal.

The Supreme Court recently declined to hear an appeal to the Ninth Circuit Court of Appeals’ decision in Martin v. City of Boise. The plaintiffs in Martin were six homeless residents of the city of Boise, Idaho, each of whom was cited for violating municipal statutes banning “camping” and sleeping on public property. Five of the plaintiffs were sentenced to time-served for their violation of the city ordinances. In making its decision, the Ninth Circuit weighed, in the majority’s words, “whether the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”


The merits of the laws are certainly debatable. What seems clear is that no reasonable person alive at the Founding would have considered them to violate the Eighth Amendment ban on “cruel and unusual punishment.” For one thing, it’s unclear that the Framers meant for the Eighth Amendment to impose substantive limits on what states can criminalize, rather than restrictions on the types of punishments they can impose. For another, vagrancy laws were unremarkable features of most state legislatures at the time of the Founding. Maine and Massachusetts both enacted laws in the spring of 1788 that called for “suppressing and punishing . . . Rogues, Vagabonds, common Beggars, and other idle, disorderly, and lewd Persons,” and for the subsequent commitment of such persons to a “convenient house or houses of correction . . . for the keeping, correcting, and setting to work of” them.

Even if one were to ignore the historical evidence, however, the Ninth Circuit’s ruling is just as puzzling in its interpretation of relevant case law and its application of precedent, making the Court’s denial of certiorari all the more bizarre.


Some background is in order. The Martin majority argues that Boise was unconstitutionally criminalizing the “status” of the homeless plaintiffs. Its analysis relies in part on the Supreme Court’s 1962 ruling in Robinson v. California, which considered whether a California law that made it a criminal offense to “be addicted to the use of narcotics” constituted cruel and unusual punishment. Justice Potter Stewart, writing for the majority, ruled that it did. “We deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense,” he wrote, a law that criminalized “an illness which may be contracted innocently or involuntarily.” Stewart recognized that “imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual,” but wrote that “even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having a common cold.”

That decision presented state legislatures with a broad and unwieldy standard for “status” crimes. Later on, the Court clarified that standard in a 1968 case, Powell v. Texas, that dealt with a Texas law prohibiting public drunkenness. The plaintiffs claimed that the law criminalized the “status” of alcoholism, but in a 5–4 decision, the Court rejected this argument. The plurality opinion, written by Justice Thurgood Marshall, argued that the plaintiff “was convicted not for being a chronic alcoholic” per se, “but for being in public while drunk on a particular occasion.” In a separate concurrence, Justice Byron White claimed that while it was unconstitutional to punish an alcoholic simply “for drinking or for being drunk,” the “appellant’s conviction was for the different crime of being drunk in a public place.”



In the Ninth Circuit’s majority opinion in Martin, Judge Marsha Berzon claims that the binding rationale in Powell is found in a dissenting opinion. Because Justice White, she says, “concurred in the result alone” while broadly mirroring the ratiocination of the dissent — that punishing a defendant’s “irresistible urge to consume alcohol” would be unconstitutional — the binding precedent laid out by Powell is that which is found in both White’s opinion and the dissent: that “criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.” This reading of the Powell case appears to derive binding precedent from the holding of the Court’s dissenting minority. And that, it turns out, is contentious.

To see why, look to another case: Marks v. United States (1977), which governs whether and how precedent can be fashioned out of the opinions of a divided Court. Lower courts follow the “narrowest grounds” rule in these circumstances, taking a “logical subset” or “least-common denominator” approach. Put simply, this means that when a majority on the Court did not agree on the reasoning by which they arrived at their decision, the reasoning that binds lower courts in future cases is the thread that appears in each constitutive portion of the Court’s majority.


The Ninth Circuit’s approach to this rule in the Boise case — combining White’s concurrence in Powell with the rationale of the dissenters — is not unprecedented, as some circuit courts have taken a similar tack. But it is hotly disputed, as it arguably affords undue power to the dissenting justices who, in the words of DC Circuit Judge Stephen F. Williams, “enjoy something of the liberty of a gadfly, as the outcome does not in fact depend on what they say.” Eugene Volokh, a professor at the UCLA School of Law, tells National Review that while the question of “whether five-Justice concurrence-plus-dissent positions are binding precedent” remains “an unsettled matter,” the Marks Court that Berzon relies upon generally believed that “the dissenters do not count.”


Berzon seems to think they do. But Judge Mark J. Bennett, the lone dissenter in the Martin case, chided the majority’s reasoning, quoting a scholar who observed that the inclusion of dissenting justices in a Court holding “would paradoxically create a precedent that contradicted the judgment in that very case.” In Bennett’s view, his colleagues’ ruling “flouts that common sense rule to extract from Powell a holding that does not exist.”

The Ninth Circuit’s ruling in the Martin case threatens to undermine a wide array of municipal quality-of-life laws. Sleeping, of course, is but one of many biological imperatives felt by the homeless population, and the logic employed in Martin may be used to undermine laws that uphold public order. But it also raises more questions than it answers on the thorny matter of how lower courts should treat divided Supreme Court opinions — questions that can only be resolved by the Supreme Court.

If only the Court had taken the case.