"The Miserly Message of Grants Pass"

The title of this post is the title of this new essay just posted to SSRN and authored by Meghan Ryan. Here is its abstract:

The Supreme Court’s recent opinion in Grants Pass v. Johnson condoned states’ attempts to police homeless encampments.  This was a significant blow to unhoused individuals and their allies.  But the Court’s opinion also continued its march away from the longstanding evolving-standards-of-decency approach in Eighth Amendment cases. Grants Pass was something of an odd case in which to grant certiorari, but it served as an opportunity for the Court to send a quiet message that it would continue narrowing the Eighth Amendment’s scope.  As in other recent cases, the Court applied a more historical approach than the one traditionally used in Eighth Amendment cases, focusing on the original meanings of “cruel and unusual” and “punishments.”  Further, the Court surreptitiously narrowed the definition of “cruel” to require governmental intent and raised significant questions about the meaning of “punishments.”  This is yet another case in which the Court has shown its intent to continue whittling away at defendants’ Eighth Amendment protections.