Puzzling through the reach and application of the Eighth Amendment inspired by SCOTUS argument in Grants Pass case

I have listened to most of yesterday's Supreme Court oral argument in City of Grants Pass v. Johnson.  I share the basic sentiments reflected in the headlines of these press accounts of the SCOTUS argument:

From the New York Times, "Supreme Court Seems Poised to Uphold Local Bans on Homeless Encampments: A majority of the justices appeared skeptical of courts wading into the thorny policy questions around when local governments can punish people for sleeping and camping outdoors."

From NPR, "Supreme Court appears to side with an Oregon city's crackdown on homelessness"

From Vox, "The Supreme Court doesn’t seem eager to get involved with homelessness policy: Grants Pass v. Johnson is probably going to end badly for homeless people, but it’s not yet clear how broad the Court’s decision will be."

The subheadline of the Vox piece captures what I have been thinking about since listening to the Grants Pass argument.  It seems likely that there are at least six votes to reverse the Ninth Circuit's ruling based on the the Cruel and Unusual Punishment Clause of the Eighth Amendment.  But what will be the path for doing so? 

In this post a few weeks ago, I flagged commentary expressing concern that the Supreme Court might use the Grants Pass case as an opportunity to make a new and hard originalist turn in Eighth Amendment jurisprudence.  But I did not hear much during the oral argument to suggest that many Justices were eager to take up Eighth Amendment originalism as a means to resolve the case.  There surely could be some Eighth Amendment originalism in the Court's coming opinion, but I am now puzzling through other Eighth Amendment issues Grants Pass brings up that perhaps could provide other routes for the case's disposition.   Let me explain:

1. Civil versus criminal sanctions:  Justice Thomas, in the first questions of oral argument, asked the lawyer for the City of Grants Pass, "have we ever applied the Eighth Amendment to civil penalties?"  The answer given, which I believe is correct, was " Not the Cruel and Unusual Punishments Clause, no."  That answer was well phrased, because the Supreme Court has applied the Excessive Fines Clause of the Eighth Amendment to "civil" sanctions.   The courts below in this case held that the Fines Clause was implicated by the city's anti-camping ordinance AND that the ordinance was criminal becuase repeat violations could lead to jail time.   But person one technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially unconstitutional under the Cruel and Unusual Punishment Clause of the Eighth Amendment when it only imposes a (modest? waivable?) fine for a first infraction.

2. Facial versus as-applied challenges:  I have never fully understood all the nuances around facial versus as-applied constitutional challenges, in part because it always seemed that Eighth Amendment claims must function as an as-applied challenge upon criminal enforcement.  Put another way, I have always assumed someone needs to first be subject to actual criminal prosecution with punishment threatened to litigate a Cruel and Unusual Punishment claim.  (A thought experiment: Could a doctor worried about new state laws criminalizing abortion bring an Eighth Amendment class-action challenge before being subject to any prosecution and even before he has performed any abortions?)  Then again, the courts below in this case held that the threat of enforcement was sufficient for standing, and arguably the categorical limits on application of the death penalty and LWOP for juveniles operate as a kind of class-wide, facial ruling about Eighth Amendment limits on statutory punishments.  Still, another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue cannot be facially challenged under the Cruel and Unusual Punishment Clause of the Eighth Amendment but only can be challenged in application on a case-by-case basis as it gets actually applied to different individuals.

3. Common-law defenses as constitutional defenses: The lawyer for the City of Grants Pass argued repeatedly that Oregon law recognizes a necessity defense which could be raised by homeless persons subject to the city's anti-camping ordinance.  Justice Gorsuch seemed particularly intrigued by this notion, but it is hard to sort through how this would doctrinally function as a matter of constitutional law.  Is just the availability of such a defense here, which is sure to be uncertain in application, enough to save the anti-camping ordinance from an otherwise winning Eighth Amendment claim?  Would such a ruling be tantamount to declaring that the Eighth Amendment makes a necessity defense sometimes constitutional required?  (Justice Gorush noted that it may make more sense to say a defense is required as a matter of due process, but he also recognized SCOTUS has rebuffed a due process claim regarding the insanity defense.)  Perhaps yet another technical (and unsatisfying?) way that the Supreme Court might rule for the city here would be to say that the anti-camping ordinance at issue is constitutional unless and until it is clear homeless persons are unable to advance an effective necessity defense in any criminal prosecution.   

Though some of these issues arose during oral argument, it is not clear any will be a focal point for the Court's coming disposition.  Many Justices seemed eager to make sure, in the words of Justice Kavanaugh, that "the federal courts aren't micromanaging homeless policy."  But, because the Justices are the only ones who define Eighth Amendment law, I hope they can at least avoid having this challening case create even more puzzling Cruel and Unusual Punishment jurisprudence.