Overturning Roe seemed like a pipe dream until it finally happened. Now that the worst modern legal precedent is gone, we asked TAC contributors: Which bad decision should the Supreme Court overturn next?

Earlier this year, New York City straphangers were shocked by the shoving murder of Michelle Go, pushed in front of an oncoming subway train by 61-year-old Martial Simon. It was a realization of New Yorkers’ worst fears: that the city’s uncontrolled serious mental illness and homelessness problems (Simon was part of both) would lead to bloodshed.

Why, a reasonable person might ask, was a potentially violent, mentally ill homeless man not detained by the police? The answers are many and varied, but in part they are because of the waning legal ability of police officers to apprehend publicly troublesome individuals before they act out. The campaign against that discretion is long, but a key waypoint is Papachristou v. City of Jacksonville, the Supreme Court’s 1972 decision that began a decades-long assault on vagrancy laws.

Vagrancy bans are a prime example of police discretion. The statute in Papachristou, for example, permitted the arrest of anyone deemed a “rogue,” “vagabond,” “common drunkard,” or numerous other disorderly occupations. Nothing about this was unusual. In 1949, vagrancy was illegal in every state and the basis of “hundreds of thousands” of arrests every year, legal historian Risa Goluboff writes in Vagrant Nation. 

“A prominent 1946 treatise captured prevailing sentiment when it concluded that vagrancy laws’ legality ‘cannot be doubted,’” Goluboff writes. “Four hundred years on the books were decisive evidence of their legitimacy.” But none of that mattered to the Court, which ruled 7–0 that Jacksonville’s statute was insufficiently clear about what behavior was proscribed and therefore void for vagueness.

Why did the Court eject centuries of law? One theory is that Papachristou, like other contemporary criminal justice cases, were a check on rampant systemic racism. After all, named plaintiff Margaret Papachristou and her friend Betty Calloway were white, while the men with whom they were arrested, Eugene Melton and Leonard Johnson, were black. 

At least as concerning to the lawyers who defended Papachristou, though, was vagrancy laws’ use to suppress radical speech. Wobblies were a common target of vagrancy enforcement, Goluboff notes, and the first vagrancy case to be argued in front of the Court, Edelman v. California, concerned the prosecution of a Los Angeles soap-box communist. The Papachristou opinion also reveals the majority’s affection for the rambling lifestyle, spending as it does more time on Thoreau and Walt Whitman than on racial equity.

Whatever the purpose, the effect on law enforcement was profound. Vagrancy statutes were used to corral not just communists, but any individuals disrupting public order. James Q. Wilson and George L. Kelling, in their famous article on “broken windows,” wrote that vagrancy laws “exist not because society wants judges to punish vagrants or drunks but because it wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.”

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Of course, Papachristou did not void all vagrancy laws, and many localities revised their ordinances. But such statutes have remained under continual constitutional scrutiny since. In Kolender v. Lawson, the Court killed a California requirement that vagrants carry “credible and reliable” identification; in City of Chicago v. Morales, it would strike down Chicago’s prohibition on “criminal street gang members” loitering in public places. Again and again, the conclusion was that laws that grant police officers discretion to detain persons are intolerably vague. 

But the order-keeping function of policing, which entails frequent judgment calls, is necessarily vague, and therefore largely an exercise in discretion. The Court saw that this discretion was at odds with a strict liberal theory of due process rights, and thus set about to kill it. In so doing, it prioritized the rights of the few over the good of the many. “Arresting a single drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense it is,” Wilson and Kelling put it. “But failing to do anything about a score of drunks or a hundred vagrants may destroy an entire community.”

We see this same logic at play today. The infamously liberal Ninth Circuit has ruled that bans on camping violate the Eighth Amendment. The liberalization of public intoxication laws—contemporaneous with Papachristou—has given way to marijuana legalization, both curtailing police pretext. Advocates of these changes then wonder why cops can’t stop crimes before they happen, and why they don’t solve as many crimes as they used to. The answer is simple: a theory of law that prioritizes the dissolute’s liberty over the community’s order.