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Autor: anton • March 22, 2011 • 2,260 Words (10 Pages) • 2,979 Views
Brandenburg v. Ohio
The Supreme Court uses various criteria for the consideration of cases. Not all cases may be chosen by the Supreme Court, so they must wisely choose their cases. The Court must be uniform and consistent with the cases they choose according to federal law. "Supreme Court Rule 17, 'Considerations Governing Review on Certiorari'" (Rossum 28).These rules are obligatory to follow because the Court uses it to grant certiorari. There are four basic rules for Rule 17. First, the Supreme Court must decide if there are any important questions on Federal Law in this case that the Court has not seen or ruled on yet. Secondly, the Court must determine if any lower courts have had any conflicting interpretations of the Federal Law. Third, they must determine if any decisions made by the lower courts conflict with any previous Supreme Court decisions, and lastly, they must check the "lower court departures from the accepted and usual course of judicial binding" (Rossum 28).
Sometimes the Supreme Court will look at the importance of the case as well. When there is disagreement between lower courts, the Supreme Court will read over the case and see if there is something in this case that may be of great concern to the nation, area, sex, race, etc. Also, the Supreme Court may deny a case depending on the effect of the case in the long-run. A good example of this is when cases were sent to the court to challenge whether or not the Vietnam War was constitutional. The court as always tried to be neutral and avoid any kind of negative involvement, especially in political disputes, and for this reason they would negate any cases on the Vietnam War. Also, and this is more over the last criteria for determining a case, the Court tries to avoid any unnecessary inflammation of the public's opinion. The Court's do this by limiting the amount of issues that may cause controversy to the public. They consider the publics reaction in choosing cases in order to broadcast their vital rulings (Rossom 29).
Once the case reaches the Supreme Court, the lawyers of each side must file legal briefs. Legal briefs are written partisan documents that are used to convince the Court to vote for the position they hold. After the Justices of the Supreme Court have read these legal briefs, it is time for the oral arguments to begin. Lawyers are usually given around thirty minutes to, once again, persuade the Court to vote for them, but also to explain the legal briefs they have given them. Also, the Justices of the Court may ask questions on the case in order to determine the accuracy of it. Once all of this is done, the Justices meet privately to discuss all of the information they have been given. The Justices may not use personal opinion because they must vote based on how this case conflicts or abides to the constitution. Once their discussion comes to a close, they have their oral votes. Oral votes are cast from the newest member of the Court to the eldest. But once these oral votes are held, the case is still up for debate. The Justices have even more discussion on the case, and comparable or contrasting opinions are written down to help the Court confirm what they have originally voted for, or possibly get them to change their vote. This is to help the Justices reach a final verdict, and once each of them have made their final vote, they converse once again with each other to explain why they voted the way they did. Once they do this, if there are any other intracourt discrepancies, they try to resolve the issues. And finally, a final verdict is reached based on majority rule and it is announced to the court (Rossom 30-32).
The majority opinion is basically the opinion that the majority had in the case. If a vote was cast 7-1, the majority would be seven, obviously. These seven justices met together before the final vote to discuss their opinions and make sure they were correct. The dissenting opinion would be that one, who doesn't agree with the majority, and they too discuss their opinion so that they may be able to convince the majority to switch their opinion. So, if a vote is 5-3, the majority vote is five and the dissenting vote is three (Rossom 33).
Brandenburg v. Ohio occurred in 1969. Brandenburg was a Ku Klux Klan leader who organized a rally in Hamilton County, Ohio. Brandenburg called a reporter in Cincinnati before the rally to broadcast the event he was holding. Around twelve members of the Klan attended the event, at which they burned a cross. Brandenburg was clothed in a full Klan uniform and delivered a speech stating, "We're not a revengent [sic] organization, but if our President, our Congress, our Supreme Court, continue to suppress the white Caucasian race, it's possible that there might have to be some revengence [sic] taken" (Brandenburg Great). During the rally, the roughly twelve members yelled racist comments and also wanted all Jews to be sent back to Israel (Brandenburg Great).
The two reporters taped the entire thing and broadcasted it on the local news. Because of this tantrum, Brandenburg was charged and convicted of violating Ohio's Criminal Syndicalism Act. This act became law in 1919, and it basically stated that it was unlawful for organizations to voluntarily assemble to provoke violence, terrorism, etc, in order to accomplish industrial or political reform. This shenanigan that Brandenburg held was an obvious violation of this law. Brandenburg realized that this law is actually a violation of his right to free speech stated in the First and Fourteenth Amendments. He appealed to the appeals court, and they agreed without even having to offer an opinion. Brandenburg then appealed to the Ohio Supreme Court, but they did not agree with Brandenburg. They rejected his appeal because the Ohio Supreme Court believed there weren't any real constitutional issues involved. The Court did not file an opinion or even explain their claim. The appeal was then taken to the Supreme Court, and they took it because their seemed to be probable jurisdiction (Brandenburg Great).
The majority opinion of the Supreme Court was a Per Curiam, which means it was issued by the Court as an institution instead of being issued and signed by an individual justice. The Per Curiam decided to reject the Ohio Criminal Syndicalism statute, stating that it goes against the first and fourteenth amendments. It cited an earlier case which was Whitney v. California, in which California's Criminal Syndicalism statute was also rejected because it too went against the first and fourteenth amendments. The Per Curiam decided to try for a new test called the imminent lawless action test. Earlier decisions such as Whitney v. California, Dennis v. United States, and Cf. Fiske v. Kansas all