The New Neccesity

Authors

• Ezra Rosser, American University Washington College of LawFollow

Abstract

According to the U.S. Supreme Court, cities are free to criminalize homelessness. The 2024 case City of Grants Pass v. Johnson is the most important homelessness case in decades and was a significant blow to advocates for the unhoused. The conservative majority rejected the idea that city ordinances criminalizing sleeping in public amounted to cruel and unusual punishment insofar as they penalized status. There is no sidestepping the loss. But within the faint glow of the embers of the oral argument and of the decision itself, there is the possibility that a new understanding of necessity, supported by the same conservative Justices, could be emerging. This Article takes such a possibility seriously, asking what the reach of this more robust form of necessity would be and how the demands of the unsheltered and hungry might unsettle property owner expectations. Though written largely as a thought experiment, this Article suggests that if the needs of the most vulnerable were prioritized, public and private property rights might have to give way to new necessity-based claims.

Repository Citation

Ezra Rosser, The New Neccesity, 67 William & Mary L. Rev. 1165 (2026).
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/2341