I continue to mull over Noem v. Perdomo. This case is different from recent emergency docket orders, which typically involve questions about administrative law and presidential power. Noem considers a more traditional constitutional dispute about the Fourth Amendment. In recent years, the Court has granted very few Fourth Amendment petitions. There is one case this year about the emergency-aid exception. So perhaps it is unusual for the Supreme Court to jump back into the CrimPro fray on the emergency docket.
But taking a step back, Noem may just represent where the current Court is on matters of criminal procedure. We have seen the Justices pivot to the right on a number of issues. But so far, the Fourth Amendment has not been affected. The last big Fourth Amendment case, Carpenter, was decided in 2018, while Justice Kennedy was still on the Court!
Where is the Roberts Court now on these issues? I think the most useful analogue to understand Noem may actually be City of Grants Pass v. Johnson. That case involved the Eighth Amendment, but the issues are related: can the state prohibit the "status" of being homeless? To be sure, the majority, per Justice Gorsuch, narrowly ruled that it was the conduct of camping that was bring criminalized. But I think Justice Sotomayor's dissent made the compelling point that people without homes have to sleep somewhere, and the state's law makes it a crime to simply be. As I put it, No homeless in the park.
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