An anti-abortion student group in Roswell, New Mexico thought it would be a good idea to pass out hundreds of small rubber replicas of fetuses to students at two high schools. As it turns out, this was not such a good idea:

Both schools experienced doll-related disruptions that day. Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

Teachers at both schools complained that students’ preoccupation with the dolls disrupted classroom instruction. While teachers were trying to instruct, students threw dolls and doll heads across classrooms, at one another, and into wastebaskets. Some teachers said the disruptions took eight to 10 minutes each class period, and others said their teaching plans were derailed entirely. An honors freshman English class canceled a scheduled test because students had become engaged in name calling and insults over the topic of abortion. A Roswell security officer described the day as “a disaster” because of the dolls

So rubber fetuses legitimately disrupted these schools’ learning environments, and the school administration had a way of shutting that whole thing down. After school officials ordered the student groups to stop distributing the fetuses, several students involved in the groups sued the school, claiming they had a First Amendment right to distribute these rubber toilet-cloggers to their fellow students.

On Monday, the United States Court of Appeals for the Tenth Circuit disagreed. As the unanimous court explained, a school may limit student speech when it reasonably forecasts such speech would “‘would materially and substantially interfere with the requirements of appropriate discipline in operation of the school,’ or ‘impinge upon the rights of other students.’” In this case, school officials didn’t just forecast substantial disruption from the rubber fetuses, they watched it unfold.

As the court emphasized, it would have been unconstitutional for the school to outright forbid discussion of abortion, so long as that discussion was carried on in a non-disruptive way.

As ThinkProgress has previously explained, the United States Court of Appeals for the District of Columbia Circuit is the second most powerful court in the country. It’s also a bastion of right-wing jurisprudence thanks in no small part to Senate Republican filibusters. Two George W. Bush appointees on this court recently struck down clean air regulations that would have prevented “between 13,000 and 34,000 premature deaths, 15,000 non-fatal heart attacks, 19,000 hospital and emergency room visits and 1.8 million days of missed work or school for each year.” Three conservative members of the court handed down a decision earlier this year that would make much of American labor law completely unenforceable, and render an important agency created to check Wall Street impotent to boot. At least two of the Court’s judges believe that all business, workplace or Wall Street regulation is constitutionally suspect.

Time, however, is a harsh mistress, and several of the court’s older Republican appointees have taken partial retirement in the last several years. As a result, this court that once boasted one of the most lopsided lineups in the country now is split 4-3 between Democratic and Republican appointees. Moreover, the Senate Judiciary Committee held a hearing Wednesday on the nomination of Sri Srinivasan to the DC Circuit, a nominee brimming with conservative endorsers and past jobs working for Republican judges and administrations. If Srinivasan is confirmed, Republican-appointees will no longer have a majority among the active judges on the nation’s second-highest court. If another Obama nominee is confirmed to one of the three remaining vacancies, Republican-appointees will be in the minority.

Which explains why Sen. Chuck Grassley (R-IA) used Srinivasan’s hearing to introduce legislation ensuring that this won’t happen:

I would like to spend a couple minutes discussing the D.C. Circuit. As most of my colleagues know, the D.C. Circuit is the least busy circuit in the country. In fact, it ranks last or almost last in nearly every category that measures workload.

Based on the 2012 statistics from the Administrative Office of the U.S. Courts, the D.C. Circuit has the fewest number of appeals filed per authorized judgeship, with 108. By way of comparison, the 11th Circuit ranks first with over 5 times as many appeals filed per authorized judgeship, with 583. . . . Given this imbalance in workload, today I am introducing the Court Efficiency Act. A number of my colleagues are co-sponsoring the legislation, including Senators Hatch, Sessions, Graham, Cornyn, Lee, Cruz and Flake.

This legislation is straightforward. It would add a seat to the Second and the Eleventh Circuits. At the same time, it would reduce the number of authorized judgeships for the D.C. Circuit from 11 to 8.

While it is true that the DC Circuit’s caseload is relatively small in terms of raw numbers, Grassley’s statistics are highly misleading. Unlike other federal courts of appeal, the DC Circuit hears an unusually large number of major regulatory and national security cases, many of which require very specialized legal research, involve intensely long records, and take more time for a judge to process than four or five normal cases of the kinds heard in other circuits. The caseloads outside of the DC Circuit include many routine sentencing, immigration and other cases of the kinds that are often dispatched with in brief orders drafted by staff attorneys (who then have these orders approved by judges). The DC Circuit, by contrast, hears far fewer of these easy cases that require very little work on the part of judges.

Indeed, it’s likely that even Chuck Grassley understands that Chuck Grassley’s numbers are misleading. In 2005, Grassley voted to confirm Judge Janice Rogers Brown, a Bush appointee to the DC Circuit. Brown was the tenth active judge on the DC Circuit when she took her seat. Shortly thereafter, Grassley voted to confirm Judge Thomas Griffith. Griffith was the eleventh active judge on the DC Circuit at the time of his confirmation.

Now that President Obama is naming judges, however, Grassley suddenly thinks the DC Circuit is so underworked that it needs just eight judges. This isn’t credible. If Grassley tries to use this excuse in the future to block an Obama nominee to the DC Circuit, Senate Democrats can respond by nuking the filibuster and making Grassley’s transparently self-serving views irrelevant.

In major trials scheduled to go before federal judges, public defenders are abruptly being furloughed, in some cases replaced by court-appointed lawyers who will have to familiarize themselves with highly complex cases. This week, the judge overseeing the trial of Osama bin Laden’s son-in-law Abu Ghaith, said the five-and-a-half-week furlough of the lawyer representing Ghaith might force him to push the trial back from September 2013 to January 2014. Judge Lewis A. Kaplan was appalled by that possibility, saying:

It’s extremely troublesome to contemplate the possibility of a case of this nature being delayed because of sequestration. Let me say only that — stunning.

All federal public defenders in New York are taking mandatory five-and-a-half week furloughs until the end of September, but many are being replaced with court-appointed lawyers who may end up costing the public more than the defenders, given their lack of familiarity with caseloads. ThinkProgress previously reported that public defenders, many already stretched too thin to adequately manage overwhelming caseloads, would be hit six times harder than prosecutors by the sequester, meaning that prosecutors can keep bringing cases that public defenders will be even more strained to defend. Now, the impacts are starting to manifest themselves in even more extreme ways than predicted, as mandatory furloughs and budget cuts approach. Other offices facing mandatory cuts are resorting to extreme measures to cut expenditures in a system whose primary expenses are salary and necessary investigatory procedures. In a southern Ohio office, director Steve Nolder fired himself after cutting every other corner he could find. Other federal defender offices will see once-a-week furloughs, as courthouses cut one day a week of criminal hearings. These furloughs and closures mean more than justice delayed. They also mean public defenders have even less time to devote to any client, and that defendants being held in pretrial detention are left waiting in jail (at significant public expense). All of this creates arguably unconstitutional conditions that violate defendants’ Sixth Amendment right to counsel. The landmark case establishing that right, Gideon v. Wainright, celebrated its 50th anniversary just last month.

The cuts are exacerbated by a vacancy crisis on the federal courts, due in large part to Senate obstruction of Obama’s judicial nominees. Even before the sequester, some federal judges reported having to resort to “assembly-line fashion,” sentencing, meaning “you  herd everybody into the courtroom and you start sentencing just running down the row.” Meanwhile, the explosion of the federal criminal docket has resulted in a 790 percent spike in the federal prison population since 1980.

 

Senate Minority Leader Mitch McConnell (R-KY) does not much like it when the Senate is getting things done. Indeed, the frequency of filibusters more than doubled after McConnell became his party’s leader in the Senate. But, as Bloomberg reports, the Minority Leader has now outdone his own ability to come up with reasons for the Senate to avoid doing its job:

The Senate was supposed to vote this afternoon on the nomination of Patty Shwartz as a judge on the 3rd U.S. Circuit Court of Appeals. That vote has been postponed until tomorrow because Minority Leader Mitch McConnell has other plans: Kentucky’s senior senator will be in the sea of red at the Georgia Dome in Atlanta as his University of Louisville Cardinals take on the University of Michigan Wolverines for the men’s NCAA basketball championship. . . .

Why the schedule foul-up? On March 31, Louisville knocked off Duke University to qualify for the Final Four, setting up a potential conflict for McConnell between the Senate vote and the championship game. He has been a frequent face in the crowd at the team’s NCAA tournament games this year.

A senior Democratic aide said the schedule was adjusted in the expectation that if Louisville made it to the final round, McConnell would want to go to the game. McConnell spokesman Don Stewart pointed out that the schedule change was made before Louisville won its Final Four game against Wichita State University on Saturday and the finals match-up was known.

For the record, it takes 51 votes to confirm a judge, and only 60 to break the filibusters that are now ubiquitous under McConnell’s leadership — and the Senate contains 99 other senators who don’t think that attending a basketball game is more important than their day job. Even excusing McConnell’s decision to place his personal needs ahead of the country, there is no good reason why the Senate cannot simply confirm Shwartz in McConnell’s absence.

In 2010, Republicans took over both houses of the North Carolina legislature for the first time since 1870, due in no small part to the spending of a single, very wealthy Republican. As Jane Mayer reported in 2011, “three-quarters of the spending by independent groups in North Carolina’s 2010 state races came from accounts linked to” wholesale baron Art Pope. Of the 22 state legislative races targeted by Pope’s family and his organizations, 18 fell to Republicans. Yet Pope’s bought-and-paid-for legislature had limited reach until very recently thanks to the state’s Democratic Governor Beverly Perdue. That all changed last January, when Perdue was succeeded by Republican Gov. Pat McCrory.

With no remaining checks to Republican rule in North Carolina, the state has now become a haven for some of the most ideological — and ill-considered — tea party fantasies dressed up as legislation. Here are just a few of the bills being pushed in the house (and the senate) that Art Pope built:

• Voter Suppression : It’s a sad commentary on the state of American politics that once Republicans take over a state, they almost immediately begin enacting laws to make it harder for Democratic-leaning groups to cast a ballot. North Carolina Republicans, however, have embraced voter suppression with unusual enthusiasm. They’ve introduced voter ID, a common GOP method of reducing turnout among minorities, low-income voters and students. They’ve introduced Florida-like restrictions on early voting, cutting early voting hours and eliminating voting the Sunday before election day in order to thwart voting drives at African-American churches. And they want to punish parents whose children vote from their college addresses.
• Reverse Robin Hood: A GOP bill in the North Carolina Senate would eliminate all individual and corporate income taxes, and largely replace it with higher sales taxes. Sales taxes disproportionately burden lower-income taxpayers, because they spend a larger percentage of their income on basic needs. It is also far more difficult to create a progressive sales tax than to enact a progressive income tax code that places a lesser tax burden on those who can least afford it. As a result, a similar tax plan in Louisiana would raise taxes on 80 percent of residents, while giving Louisianans in the top 1 percent of income earners an average tax cut of $25,423.
• Shutting Down Abortion Clinics: Another bill in the state senate would add new restrictions to abortion clinics in an attempt to force them to close their doors. Among other things, the bill requires doctors to have admitting privileges in a hospital located within 30 miles of the clinic, an unnecessary restriction that serves little purpose other than to limit the pool of doctors available to clinics.
• Anti-Worker Constitutional Amendment: A so-called “right-to-work” law, which depresses worker wages by cutting back unions’ ability to collectively bargain for wages and benefits, is already the law in North Carolina, effectively cutting both union and non-union wages by $1,500 a year. Nevertheless, 34 Republican lawmakers (and one Democrat) sponsored a state constitutional amendment that would lock this anti-worker policy into the state Constitution. The same amendment would strip public sector workers of their right to collectively bargain, and lock in policies making it easier for companies to pressure their workers against unionizing to boot.
• Subsidizing Home Schooling: Eight Republican lawmakers sponsored a bill giving families a $1,250 per semester tax subsidy if they home school their children.
• Judges For Sale: A pair of bills in the state senate would eliminate the state’s successful public financing system for judicial elections. Prior to this system’s enactment in 2004, “73 percent of campaign funds for judicial candidates came from attorneys and special interest groups,” according to the Brennan Center for Justice’s Alicia Bannon. Now, it’s 14 percent. So public financing was successful in rolling back moneyed interest groups’ ability to buy and sell judges through campaign donations, and these GOP bills would throw judicial elections back to the old ways.
• State Sponsored Religion: Eleven Republicans, including the state’s House Majority Leader, backed a resolution proclaiming that the Constitution “does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional,” and then decreeing that North Carolina could establish its own state religion. On the bright side, state house Speaker Thom Tillis announced that he would not advance this resolution after it was widely panned.

The defeat of North Carolina’s religious endorsement resolution is a hopeful sign that these bills can be stopped. But it’s important to remember that the religious establishment bill was simply a non-binding resolution that amounted to little more than an ideological yawp. The real test is whether efforts to restrict the franchise, target women’s freedom, cut wages and enrich people like Art Pope are ultimately successful.

In an interview with a public radio station in Nevada Friday, Senate Majority Leader Harry Reid (D-NV) indicated that the weak-tea filibuster reforms Senate Republicans agreed to last January may not be the last round of reforms during the current Congress — at least if Senate Republicans continue to filibuster judges without good reason or consequence. During the interview, Reid threatened to invoke a process championed by Senate Republicans in 2005 in order to change the Senate’s broken rules and end conservative roadblocks against judicial confirmations:

“All within the sound of my voice, including my Democratic senators and the Republican senators who I serve with, should understand that we as a body have the power on any given day to change the rules with a simple majority, and I will do that if necessary,” Reid said on Nevada Public Radio.

Reid last year adopted the position that rules could be changed using a simple majority — instead of a filibuster-proof majority — if done on the first day of the legislative session. But these recent comments appear to signal that he believes he has an even broader ability to reshape the chamber’s rules. . . . “I’m a very patient man. Last Congress and this Congress, we had the opportunity to make some big changes. We made changes, but the time will tell whether they’re big enough. I’m going to wait and build a case,” Reid said. “If the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done, then we’re going to have to take more action.”

It is certainly good news that Reid appears willing to push more serious filibuster reforms through the Senate, but the ultimate test is whether he and 50 of his Senate colleagues have the resolve to actually pull the trigger on rules changes if Senate Republicans continue to erect barriers to judicial confirmation.

The last time this drama played out, with Democrats and Republicans each playing the opposite role, President Bush nominated several unusually ideological judges to federal appeals courts. These included Priscillia Owen, who took thousands of dollars worth of campaign contributions from Enron when she sat on the Texas Supreme Court, and then wrote an opinion reducing Enron’s taxes by $15 million. And Janice Rogers Brown, who compared liberalism to “slavery” and court decisions upholding the New Deal to a “socialist revolution” before joining the federal bench, and who wrote an opinion suggesting that all labor, business or Wall Street regulation is constitutionally suspect last year.

Nevertheless, few people doubted in 2005 that Senate Republicans were prepared to nuke the filibuster in order to confirm Bush’s slate of nominees, and seven Democratic senators eventually capitulated almost entirely to Republican demands and allowed both Owen and Brown to be confirmed in order to preserve the filibuster. In light of the Senate GOP’s effective use of that filibuster to block much of President Obama’s agenda and nominees, this capitulation now looks even more ill-considered in hindsight than it did at the time it occurred.

President Obama has never nominated anyone as far to the left as Judge Brown is to the right — indeed, it is not clear that anyone other than an avowed communist would fit that bill. Nevertheless, there is a lesson in the 2005 fight that made Brown a federal judge that Reid should take to heart: the best chance of convincing enough Senate Republicans to break with their party and stop filibustering Obama’s judicial nominees is for Reid to first convince them that he will pull the trigger on major rules reform unless they stop hindering the confirmation process.

And if Senate Republicans try to call Reid’s bluff by filibustering another nominee, Reid must show that he wasn’t bluffing.

In just the first week since the U.S. Supreme Court rejected a class action lawsuit by more than 2 million Comcast costumers, the decision is already having major repercussions in several other cases alleging malfeasance by major corporations.

On Monday, the U.S. Supreme Court kicked two other class action challenges back to the lower court in light of its ruling in Comcast v. Behrend. In both cases, the plaintiffs had secured hard-fought wins just to establish that they could sue as a class. Now, they will have to argue that threshold question yet again — using the new harsher standard imposed by the Court’s five conservative justices — before they even have a chance to make the case that the defendants are liable. And in another case decided just two days after Comcast, a federal trial judge relied upon the decision to reject several claims of a class suing Applebee’s for wage-and-hour law violations.

In the Comcast ruling issued last Wednesday, five justices sided with Comcast in a significant but little-noticed ruling that denied consumers the opportunity to challenge alleged monopolistic practices and further eviscerated the class action, the mechanism that enables multiple individuals to band together with the necessary resources to take on corporate behemoths. The four dissenting justices who fumed at the audacity of the decision took solace in the fact that it should have limited application to other cases. But early indications are that the decision has legs.

In each of the three cases already affected by the ruling, Comcast was the basis for rejecting rulings in favor of the class and instead siding with the defending companies. In one, a class of consumers alleging particular washing machine models were defective will have to re-litigate the claim that individuals can join the class even if their faulty appliance hasn’t yet developed mold and foul odors. In another, a group of RBS Citizens employees will have to invest even greater resources into merely arguing that they should not have to challenge the company’s widespread denial of overtime pay one case at a time.

The plaintiffs in both of these cases won the right to sue as a class both at trial and before the federal appeals panel. In the appeals court decision ruling against Whirlpool, the court cited Judge Richard Posner, a pioneer of the conservative law and economics movement, who upheld a class lawsuit in a case alleging the exact same washer defect. In that case, he rejected claims that each plaintiff had to prove individual damages at such an early stage in order to certify the class, since plaintiffs must later prove their own damages before they can be compensated. Posner explains:

A class action is the more efficient procedure for determining liability and damages in a case such as this involving a defect that may have imposed costs on tens of thousands of consumers, yet not a cost to any one of them large enough to justify the expense of an individual suit. If necessary, a determination of liability could be followed by individual hearings to determine the damages sustained by each class member . . . The class action procedure would be efficient not only in cost, but also in efficacy, if we are right that the stakes in an individual case would be too small to justify the expense of suing, in which event denial of class certification would preclude any relief.

This is precisely the reason why the class mechanism exists, and why it is such a blow to consumers’ rights, employees’ rights, and corporate accountability, that the Supreme Court is steadily eroding its viability. As Reuters reports, several other lawyers are already citing the decision in major lawsuits against the corporations they represent.

A federal court in Indiana struck down a state law on Friday that would have enabled police to arrest many immigrants even if they had no evidence whatsoever that those immigrants had committed a crime.

Under the Indiana law, police are authorized to arrest immigrants who are the subject of various federal immigration-related actions. Some of these actions indicate the immigrant is to be deported, others have little or nothing to do with whether the immigrant is allowed to remain in the country lawfully. Indeed, as the court points out, one of the documents authorizing police to arrest immigrants in Indiana is a document that is used “to notify an individual that he or she has been granted lawful status.” So effect of the Indiana law is that an immigrant could learn that they may lawfully remain in the United States, only to have this lawful status used against them when Indiana police decide to arrest them.

The court found several problems with the Indiana law, but it reserved its harshest words for the law’s disregard for immigrants’ right to be free from unlawful searches and seizures under the Fourth Amendment:

Section 20 expressly provides that state and local enforcement officers “may arrest” individuals for conduct that all parties stipulate and agree is not criminal. The statute contains no reference to Fourth Amendment protections nor does it include a requirement that the arrest powers granted to law enforcement officers under Section 20 be used only in circumstances in which the officer has a separate, lawful reason for the arrest. Moreover, accepting Defendants’ proposed construction would, in effect, read the statute out of existence. Apart from the exclusion of Fourth Amendment requirements regarding probable cause to arrest, Section 20 bestows no authority on law enforcement officers beyond the power to arrest for the noncriminal conduct enumerated therein, creating a deafening silence as to what happens to the arrestee post his or her arrest. There is no mention of any requirement that the arrested person be brought forthwith before a judge for consideration of detention or release. There is, in fact, a complete void within the newly enacted statute regarding all other due process protections. . . .

[W]e find that Section 20 is susceptible to only one interpretation, to wit, that it authorizes the warrantless arrest of persons for matters and conduct that are not crimes. Because such power contravenes the Fourth Amendment, Section 20 is unconstitutional.

Unfortunately, other federal courts have twisted the law into knots in order to limit the Fourth Amendment rights of immigrants. One federal appeals court, the severely conservative Fifth Circuit, even went so far as to suggest that undocumented immigrants do not have any Fourth Amendment rights at all.