On a cool October afternoon in 1953, President Dwight Eisenhower made up his mind to honor a promise he’d made to one of his Republican challengers in the 1952 primary. Talk is cheap in Washington, but after being refused by Thomas Dewey he made good and asked Earl Warren to serve on the Supreme Court. Eisenhower had promised his opponent the first vacancy on the court, which turned out to be the seat of Chief Justice. Warren was the former anti-labor District Attorney of Oakland who’d cooked up conspiracy prosecutions of Communists during the Great Depression and one-time Governor of California. He accepted his appointment to the highest court in the U.S. as its Chief Justice; an anti-Communist Republican appointed by the staunchly Republican Eisenhower to replace the centrist Democrat Vinson, who’d been appointed by Democrat Truman. As Chief Justice, Warren would usher in an era of progressive politics and wield the power of the court to make vast expansions of individual civil rights, something that may seem at odds with his background.
It wasn’t. Warren’s politics were class peace and reform. He treated Communists as class agitators, but he also ruled consistently to “soften” the excesses of capital.
The Warren court went on to decide some of the most important cases in modern Statesian jurisprudence. Brown v. Board of Education, ending legal segregation, Loving v. Virginia, outlawing antimiscegenation laws, Griswold v. Connecticut, establishing the right to birth control, and four major criminal cases that established the rights we think of as fundamental to the criminal process: Gideon v. Wainwright, the right to a court-appointed attorney, Brady v. Maryland, the right to be given exculpatory evidence held by the state, Wong Sun v. United States, granting the right to suppress evidence that was obtained by the police illegally, and Miranda v. Arizona, the right to be informed of your rights when you’re arrested, the famous Miranda warning.
Among these progressive expansions of individual rights was Robinson v. California, the case that the current Supreme Court has just limited to its facts and robbed of any precedent-establishing power. What did the Warren court hold in Robinson? That it was cruel and unusual punishment in violation of the 8th amendment of the federal constitution to criminalize a “status” over which a person has no control. In that case, the court struck down a California law making it a crime to be addicted to drugs. The fascist court of John G. Roberts, Jr., has just held, in the newly issued City of Grants Pass v. Johnson, that the Robinson ruling doesn’t apply to the homeless. This is just the latest in the Roberts court’s piecemeal march against established Warren precedents, and represents nothing less than the sharp contraction of the U.S. empire.
Warren and the Apogee of Empire
By 1953, the war had been over for eight years. Europe lay devastated. In 1948, Truman enacted the Marshall Plan, pumping U.S. capital into areas Washington’s elite thought might be vulnerable to Communism. It was a kind of economic GLADIO, a stay-behind program (and if you don’t recognize GLADIO, that’s worth reading up on). The world war hadn’t ended before the Cold War began, and the U.S., its domestic production untouched by the conflict, stepped out of Great Britain’s shadow to claim hegemony over the West and proclaim itself the sword and shield of the Euro-American capitalist class.
Eisenhower was the first truly post-war president to preside over this new American empire. In a sense Warren and his court, which lasted until 1969, was an extension of the ruling class politics of the age. What was this policy? The expansion of New Deal-type programs — which Warren had attacked before taking the bench — and the creation of a new Pax Americana. Under Eisenhower, post-war imperial wealth flowed from all corners of the globe and it was used to establish social security, the interstate highway system, and NASA. Instead of the growth of social democracy and the welfare state, as seen in Europe, class struggle was suppressed in the U.S. through the expansion of public infrastructure and the goodwill (read: self-preservation) of the capitalist class, which gave out robust pensions, employer-provided health insurance, etc. These benefits fell primarily to the “white” workers, which by now included formerly “non-white” ethnicities from Europe such as the Irish and Italians. The class struggle was thus forced underground during this period, and it manifested explosively in the struggles for national liberation that shook the country from the mid-50s until the end of the 1970s.
We needn’t prove Warren’s personal motivations as Chief Justice to make our case. In fact, from all outside appearances, he genuinely believed in the principles he espoused through his decisions. But such is the case with many bourgeois politicians. They earnestly believe their class ideology. The fact that it serves a class purpose operates on a level below their conscious understanding. It is typical for members of the ruling class to be thoroughly seduced by the self-justifications and illusions that make up their class morality.
Above all, it is this legacy of bourgeois morality that the ultra-fascist majority on the Roberts court have set as their target. As arch-reactionaries, they are working to roll back the clock and restore the early 20th century pre-Warren legal landscape. They are ushering in an era of naked class domination, stripped of the comfortable fat provided by the loot of empire.
Grants Pass is a Return of Labor Discipline
To understand Grants Pass we have to look at the direct precedent that the Roberts court has overturned. The case in question is Martin v. Boise, a 2019 decision concerning unhoused people that was issued by the Ninth Circuit federal Court of Appeals. The Ninth Circuit covers the geographical area of Washington state, Oregon, Idaho, Montana, Nevada, California, and Arizona. According to the 2022 Annual Homelessness Assessment Report released by the federal Department of Housing and Urban Development, 40% of the country’s entire unhoused population lives within the Ninth Circuit’s jurisdiction. As the fascist justice Gorsuch, author of the majority opinion in Grants Pass, noted, “homelessness in this country has reached its highest levels since the government began reporting data on the subject.”
The Martin ruling made it unconstitutional (within the Ninth Circuit) for a state to enforce criminal penalties on public camping if the city in question lacked sufficient shelter beds to house its unhoused population. The legal rationale is dull, but in essence the court held that it was a violation of the 8th amendment’s prohibition against cruel and unusual punishment to jail houseless people simply because they had nowhere to stay, especially if the city lacked sufficient public relief. The Martin decision was predicated on the Warren court’s Robinson ruling, where the court held it to be a violation of the 8th amendment’s cruel and unusual punishment clause to criminalize addiction.
City of Grants Pass arises from a Martin injunction brought by Gloria Johnson and John Logan, who challenged the city’s public-camping laws. They brought a suit as a federal class action, representing “all involuntarily homeless people living in Grants Pass.” A panel of the Ninth Circuit found that Johnson and Logan faced a credible threat of punitive action from Grants Pass and that all unsheltered people in the city were “involuntarily homeless” because the city’s unhoused population exceeds available shelter beds. The city, desperate to retain its punishment power and other tools of state repression, sought a rehearing en banc by the entire court; it was denied.
Grants Pass filed a petition to the Supreme Court for certiorari (certification that the issue be heard by the Supreme Court of the United States). The cities of Albuquerque, Anchorage, Chico, Chino, Colorado Springs, Fillmore, Garden Grove, Glendora, Henderson, Honolulu, Huntington Beach, Las Vegas, Los Angeles, Milwaukee, Murrieta, Newport Beach, Roseville, Saint Paul, San Clemente, San Diego, San Francisco, San Juan Capistrano, Seattle, Spokane, Tacoma, and Westminster, the National League of Cities (representing over 19,000 other American cities and towns), the League of California Cities (representing California’s 477 cities), the League of Oregon Cities (representing Oregon’s 241 cities), the Association of Idaho Cities (representing Idaho’s 199 cities), the League of Arizona Cities and Towns (representing all 91 municipalities in Arizona), the North Dakota League of Cities (representing 355 cities), the Counties of Honolulu, San Bernardino, San Francisco, and Orange, the National Association of Counties (representing all 3,069 counties of the U.S. empire), the California State Association of Counties, the Special Districts Association of Oregon, the Washington State Association of Municipal Attorneys, the International Municipal Lawyers Association, the District Attorneys of Sacramento and San Diego Counties, the California State Sheriffs’ Association, the California Police Chiefs Association, the Washington State Association of Sheriffs and Police Chiefs, California Governor Gavin Newsom, San Francisco Mayor London Breed, and 20 other states (Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, Virginia, and West Virginia) all joined the city to support the petition for certiorari.
All the lackeys of law and order, all the petty bourgeois strivers and graspers, all the pigs and their captains, all the fascist forces of the Western United States, put their names on the petition and many of these wrote briefs in support of Grants Pass, begging for Martin to be overturned. The Roberts court was only too happy to oblige.
The Unhoused: Proletarians and the Reserve Army of Labor
The unhoused generally fall into one of two categories when it comes to class. Either they are themselves working class proletarians, who work by wage labor, or they are sub-proletarians, thrown out of the labor force entirely and denied any means of support. These are people who would otherwise live by wage labor, who have no substantial property or investment in the machinery, land, or other tools by which society produces the commodities that are its lifeblood. Many unhoused people were sheltered proletarians or even petit-bourgeoisie only a short time before they became unhoused. With the dismantling of the feeble safety nets erected during the imperial apogee by the “liberal” crowd of Clintonites in the 90s, it has become easier than ever to fall out of the sheltered working classes and enter the ranks of the sub-proletariat, the great unhoused.
The unhoused already suffer a number of critical disabilities inflicted on them by “civil society” before we reach the question of criminalization. Lacking a permanent address and in many times deprived of a stable telephone number, the unhoused are generally prevented from voting by registration requirements. This means the lofty list of cities, towns, counties, etc., that filed to support the City of Grants Pass in its bid to criminalize homelessness were elected without input from the very population they want to police. This is what we mean by class domination. (In the case of the rest of the working proletariat, this relationship is slightly more disguised; because we can technically cast a ballot, and we are often duped into thinking the ballot matters.)
Marx calls those who are kept out of work the relative surplus population (meaning, those people who are, relative to the active work available, kept as extra or surplus without employment) or the industrial reserve army. By limiting the number of jobs available and ensuring that every proletarian and sub-proletarian who isn’t working lives in squalor and near-death, the capitalist class “forms a disposal industrial reserve army, that belongs to capital quite as absolutely as if the latter had bred it at its own cost…. [I]t creates, for the changing needs of the self-expansion of capital, a mass of human material always ready for exploitation.” Capital, Volume 1, Chapter 25, Section 3. At the same time, this industrial reserve army creates a source of extra labor with which to break strikes and serves as a club to discipline the labor force.
Imagine, for instance, that you work in a McDonalds or an Amazon warehouse. The conditions are atrocious in this particular location. Wages are being docked or withheld illegally, people are being disciplined for nothing, and you aren’t being allowed to take your breaks. You decide to unionize to force the owners to the table; after all, if everyone threatens to walk off the job, they’ll have to make concessions. If you’re in a city where there is a very large unemployed or under-employed population, the owners might simply say “Fine,” discharge you and all your fellow would-be unionizers, and hire replacements from that unemployed labor force — that industrial reserve army.
This helps keep down wages even before we begin to account for the widespread U.S. practice of utilizing basically free prison labor. Criminalization gives capitalists the chance to make use of that free labor because the habitually unhoused will be arrested again and again, and eventually be given sentences of imprisonment that turn them into a state workforce. This is state-labor-for-hire without compensation, all perfectly legal under the 13th amendment to the constitution, which outlaws slavery except as punishment for a crime. After all, about one-third of all California’s firefighters are judicial slaves.
The effect of this ruling on wages and benefits occurs purely by operation of the underlying political economy that will result. It doesn’t require an active conspiracy on the part of the court, the cities, the sheriffs and police, or anyone in the entire chain of command that will ultimately enforce the punitive bans that wind up criminalizing homelessness. Even if, at each step in this process, the agent of the state is merely expressing an honestly-held dislike of “public vagrancy” (and the Gorsuch opinion is brimming with classist descriptions of public defecation and children wading through used needles), it will have the same ultimate effect. More enforceable criminal penalties means more prisoners; it means more court fees; it means, therefore, in states where inmates are forced into slavery, a larger free laboring population. This means the cost of labor will fall relative to its value as more laborers enter the market. Businesses will have the choice between hiring free workers, who might be disobedient, agitate for a rise in wages, etc., or paying the state money to make use of a captive work force. The market price of labor will therefore fall. This, while we are experiencing the sharpest rise in cost of living since the inflation crises at the close of the 1970s, ensures that more workers will be made unhoused as their wages fall, and a downward pressure will continue to be exerted on wages.
The more precarious a workforce is, the more subject to random arrest and search or other punitive measures, the less likely it is to seek redress through unionization and organization. That lesson was demonstrated by the poultry industry when they simply had their unionizing workers deported en masse.
Marching Counter Clockwise
This decision is part of the court’s broad assault on the Warren-based state, the administrative state (that is, the delegation of rulemaking authority from Congress to the administrative agencies), and, critically, the legal regime of unionization. The ultra-fascist justices have rejected a century of precedent and appear intent on ushering in an era of labor-discipline that resembles the U.S. of 1900, before the labor struggles that established the legal right to unionization and prior to the creation of the National Labor Relations Board. The Grants Pass decision fits neatly into this plan to march backwards, into a pre millenarian century.
The door now stands open for the re-establishment of the debtor’s prison in name as well as form. Although the judicial system has long practiced a kind of debt imprisonment in actuality, in form the debtor’s prison is often seen as a quaint Victorian curiosity. There is much less need for covert imprisonment-for-debt now that the highest court in the country has ruled that it is permissible to make homelessness illegal. Yes, certainly, there is an act that these laws proscribe (sleeping in public), but the act is inextricably tied to the status that Gorsuch claims they aren’t criminalizing. The Supreme Court has legalized the debtor’s prison, has given its blessing to the mass incarceration of the unhoused, and has created the conditions for a massive reactionary backlash.
We can see it in the language the majority uses, through Gorsuch. He disdainfully complains that a Chico, California homeless shelter wasn’t sufficient under Martin, even though it “included protective fencing, large water totes, handwashing stations, portable toilets and a large canopy for shade…. Why? Because, in that court’s view, appropriate shelter requires indoor, not outdoor spaces.” Gorsuch has described a concentration camp for the unhoused and mocked a court for holding it insufficient.
This is the future imagined by the Roberts court. Of course Gorsuch defends the concentration camp. When the Supreme Court issues a decision, it isn’t merely making a legal ruling, it is communicating with the parties and potential future parties. The parties to this case weren’t merely the City of Grants Pass, Gloria Johnson, and John Logan, but also every one of the thousands of cities and counties, sheriff’s associations, police groups, district attorneys, state’s attorneys, and other agents of the bourgeois state apparatus. The lurid language that Gorsuch uses is a signal. Justices choose their words carefully. We must be prepared. The state is. They are preparing labor camps for the houseless, “shelters” with protective fencing and a canopy for shade. Taken in the light of the other rulings the Supreme Court recently decided, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, which we discussed when the year began, the intention of the court is clear. They aim to strip administrative agencies of their power, destroy the NLRB, and subject working people throughout the country to a regime of labor discipline by police control.
