The writing assignment is to draft your own opinion which rules/ decides the appeal to the U.S. Supreme Court and hypothetical grant of certiorari of the 9th Circuit’s opinion in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018)..

United States Supreme Court decisions are, not coincidentally, referred to as “opinions.” We all have opinions. If you are a member of the U.S. Supreme Court, your professional/ legal opinion matters a great deal. A goal of the first, and indeed each, writing assignment is to empower and engage you. The assignment begins with the proposition that you are to consider yourself an Associate United States Supreme Court Justice. (There are nine justices on the Supreme Court. One, presently John Roberts, serves as the “Chief Justice,” and the other eight are referred to as Associate Justices. Their individual votes vis-à-vis determining a majority ruling count the same; there is no extra weight given to the Chief Justice’s vote. One side gets five votes, that side wins/ prevails/ establishes the (un)constitutionality of the law. It’s exactly that simple/ complex).

The writing assignment is to draft your own opinion which rules/ decides the appeal to the U.S. Supreme Court and hypothetical grant of certiorari of the 9th Circuit’s opinion in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018). In other words, you be the judge. Did they (the 9th Circuit) get it right or wrong?

Develop, articulate, set out (three different ways of essentially asking the same thing) arguments for each side, then offer your own conclusion and explain why your answer (i.e, the city ordinance violates or does not violate the United States Constitution’s Eighth Amendment’s bar against Cruel and Unusual Punishment) is justified. If you agree with the 9th Circuit’s court ruling, note that you are affirming their judgment. If you dis-agree, note that you are reversing the 9th Circuit’s ruling. Either outcome is equally acceptable – your judgment and supporting basis/bases are what matters, and coincidentally it’s worth observing that historically the 9th Circuit’s opinions, when considered by the Supreme Court have an above average rate of reversal.

Issues/ points you may wish to consider: Should it matter why a person is homeless, as it involves enforcement of a criminal statute involving camping, sleeping, etc., in public? For instance, what if the person is homeless because they do not want to work? Should that person receive Eighth Amendment protection simply because insufficient alternative (shelter) bed-space is available?

Statistically, many homeless persons suffer from mental illness. Should the rights of a person so mentally ill that he/she cannot hold employment and thus may be homeless turn on the basis that some others may be homeless because of “choice”? Should it matter – as to constitutional protections involving punishment, whether the person is mentally ill, or may have has some genetic tendency toward addiction/ alcoholism? Does it represent an unconstitutional form of ‘piling on,’ re: punishment, to criminalize camping, sleeping in public, etc., when whatever the reason, the realities of homelessness are awfully bleak?

Or, perhaps consider an individual addict’s/ alcoholic’s personal agency? If the person is homeless because he/she is an addict/ alcoholic, does the person possess the right to continue to take drugs and/or drink alcohol, even if means he/she will likely prematurely die – provided his/ her actions do not harm others? Or, for instance, should “we” (collectively society) permit “punishment” by enabling the government to put homeless addicts/ alcoholics in jail “for their own good” – so they might get their proverbial head straight, through sobriety or – in the case of mental illness, compel obedient consumption of drugs prescribed to control/ manage some diagnostically recognized mental illness, if treatable? Regarding the concept of a ‘disease,’ cancer patients have a right to decline treatment and society does not put them into jail for their own good, waiting/ hoping/ expecting they come to their proverbial senses and make a rational decision to seek help, e.g., chemotherapy. (Or maybe the entire addiction issue, at least in the context of the City of Boise statute, is irrelevant because it separately and previously was decided it is constitutionally permissible to arrest persons for being drunk in public)

And/or, in the comparative balance of rights, do members of the public have the right to walk along public streets without the (arguable) blight of tents pitched on the sidewalk, with the accompanying realities and unpleasantness of public urination and defecation? If you work to pay rent or own property, are you entitled to some legal benefit over, for example, a homeless person who doesn’t (pay rent or own property) but decides to, for instance, sleep on the sidewalk outside your apartment or house?

And/or does it matter what the motivation of government is, to wit, whether the motivation behind a law permitting prosecution against camping in public is genuinely intended to “help” homeless people, whether it’s motivated by a desire that “those people should get a job, like the rest of us,” and/or whether it’s simply a matter of being able to police and keep public spaces clean and free of occupation by homeless people, and has nothing to due with the Eighth Amendment’s important and philosophically admirable protections?

The above questions are merely examples of perspectives you may choose to consider in drafting your opinion/ views. However, keep in mind a couple of touchstone issues, namely, (1) the question the 9th circuit panel faced: “(D)oes the Cruel and Unusual Punishments Clause of the Eighth Amendment preclude enforcement of a statute prohibiting sleeping outside against homeless individuals with no access to alternative shelter?, and (2) the panel’s holding (i.e., ruling): “We hold only that ‘so long as there is a greater number of homeless individuals in (a jurisdiction) than the number of available beds (in shelters)’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’”

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