Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  24 ferential, analysis of state law.” 67 The Chief Justice plainly is correct about the existence of instances in which the Supreme Court has rejected state court interpretations of state law. Federal rights often become entwined with questions of state law, and state judiciaries would be able to obstruct implementation of those rights if their own interpretations of state law were immune from federal review. 68 Consider a few examples. State law determines whether a contract exists, which is a necessary predicate for a violation of Article I, sec- tion 10, which forbids state impairment of the obligation of contract. 69 Similarly, state law determines whether a property right exists, which is a necessary predicate for the finding of an uncompensated taking, in violation of the Fifth and Fourteenth Amendments. 70 Whether re- troactive criminal punishment has been imposed, in violation of the Ex Post Facto or Due Process Clauses, depends on whether state criminal law has changed since the defendant committed the alleged transgression, which turns partly on a determination of what state law was before the defendant acted. 71 Finally, because the Supreme Court will not decide a federal question when “adequate and independent” state grounds exist to sustain a state court ruling, vindication of federal rights that are raised in state court proceedings depends on compliance with state procedural law. 72 The adequacy of the state ground of decision depends partly on its not having been invented post hoc to defeat the posited federal right. 73 67 Id. at 4-5 (citing NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), Bouie v. City of Columbia, 378 U.S. 347 (1964), and Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch 603 (1813)). 68 See, e.g., Peter W. Low & John C. Jeffries, Jr., Federal Courts and the Law of Federal-State Relations 82 (4th ed. 1998) (“[i]f there were no limits on the freedom of state courts to determine whether a contract had been created and the nature of its obligations, the federal limitation might be easily evaded”). 69 See, e.g., Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938) (“On such a question [of whether there is a con- tract], one primarily of state law, we accord respectful consideration and great weight to the views of the State’s highest court but, in order that the constitutional mandate may not become a dead letter, we are bound to decide for ourselves whether a contract was made, what are its terms and conditions, and whether the State has, by later legislation, impaired its obligation.”). 70 See, e.g., Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1032 n.18 (1992) (noting that the Court will defer only to “an objectively reasonable application of relevant precedents” defining the property right) (emphasis in original). 71 See, e.g., Bouie v. City of Columbia, 378 U.S. 347 (1964). 72 See, e.g., Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875). 73 See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). See generally Broad River Power Co. v. South Caro- lina, 281 U.S. 537, 540 (1930) (“[I]f there is no evasion of the constitutional issue, and the non-federal ground of decision has fair support, this Court will not inquire whether the rule applied by the state court is right or wrong, or substitute its view of what should be deemed the better rule, for that of the state court.”) (citations omitted).