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

25  R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto 2018  Thus, the concurring opinion is correct that the Supreme Court occasionally has rejected state court interpretations of state law in order to protect federal rights. Yet the rule generated by these cases seems to be one requiring evidence of bad faith by the state courts in their interpretation of state law. All three of the Supreme Court precedents cited by the concurring opinion on this score involved situations where state courts had manifested, beyond a shadow of a doubt, the willingness to defy federal law. 74 A closer look at the two modern cases invoked by the concurring opinion reveals how little support they provide for federal court intervention in Bush v. Gore . 75 In NAACP v. Alabama , 76 the Supreme Court ruled that the NAA- CP had a first amendment right to refuse to disclose its membership lists to Alabama authorities. Before reaching the merits of the case, though, the Justices first had to decide whether the federal constitu- tional claim was procedurally barred. The Alabama Supreme Court had refused to consider the first amendment claim on its merits, be- cause of the Association’s failure to follow the correct procedural path for securing state supreme court review of its contempt citation for refusing to disclose its membership lists. Specifically, the state court ruled that the NAACP should have sought a writ of prohibition rather than a writ of mandamus. It is inconceivable that the Justices’ view of the case–both on the merits and on the alleged state proce- dural default–was uninfluenced by their knowledge that the state of Alabama, including its jurists, were engaged in a project of massive resistance toward Brown v. Board of Education , 77 a fundamental part of which involved shutting down the NAACP’s operations in the state. 78 Yet even setting aside this extrinsic basis for questioning the good fai- 74 See Bush , slip opinion at 5 (Ginsburg, J., dissenting) (noting that the three cases invoked by the concurring opinion were “embedded in historical contexts”). 75 The third case, as Justice Ginsburg notes in dissent, involved the Revolutionary era conflict between southern state legislation confiscating Tory lands and federal treaties seeking to curtail confiscation. That conflict led southern state courts to engage in efforts at nullification no more subtle than those undertaken by their counterparts in the civil rights era. See Fairfax’s Devisee v. Hunter’s Lessee, 7 Cranch 603 (1813); Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816); Bush , slip op. at 5 (Ginsburg, J., dissenting). 76 NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958). 77 See generally Numan Bartley, The Rise of Massive Resistance: Race and Politics in the South During the 1950s (1969). 78 See generally Walter Murphy, The South Counterattacks: The Anti-NAACP Laws, 12 Western Pol. Q. (1959). On background to NAACP v. Alabama , see Mark V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, at 284-89 (1994); Robert Jerome Glennon, The Jurisdictional Legacy of the Civil Rights Movement, 61 Tenn. L. Rev. 869, 887-900 (1994).