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  26 th of the state court justices in NAACP , 79 the Supreme Court was able to identify no fewer than a half dozen prior Alabama Supreme Court decisions that had rejected precisely the procedural distinction relied upon by that court in NAACP to justify its refusal to reach the merits of the first amendment claim. 80 Incredibly, the state supreme court at an earlier stage of these same proceedings had directed the NAACP’s lawyers to seek appellate review via the very procedural route (a writ of mandamus) that the state justices later determined to cons- titute a procedural default. 81 In other civil rights era cases where the Supreme Court likewise declined to permit state procedural defaults to block federal review of constitutional claims, the Justices also were able to point to earlier state precedents that directly contravened the state court’s finding of a procedural default in the case under review. 82 Notwithstanding Chief Justice Rehnquist’s claim that precedents like NAACP v. Alabama were “precisely parallel” to Bush , 83 he failed to iden- tify anything even remotely similar in Florida case law that would war- rant the conclusion that the Florida Supreme Court was departing from established precedent. Without expressly saying so, the conservative Justices implied that the Florida Supreme Court’s statutory interpreta- tions in Bush were entitled to no greater deference in federal court than those of renegade white supremacist nullifiers during the civil rights era. 84 One might have expected that these Justices would offer some factual predicate to justify this extraordinary (albeit implicit) aspersion on the integrity of state court jurists, 85 but they did not. 79 Most of the other leading cases rejecting the adequacy of state procedural grounds for denying federal rights also involve southern states obstructing the civil rights movement. See, e.g., Barr v. City of Columbia, 378 U.S. 146 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Shuttlesworth v. City of Alabama, 376 U.S. 339 (1964); Wright v. Georgia, 373 U.S. 284 (1963). See also Low & Jeffries, supra note __, at 109 (“It is no coincidence that many such cases arose in the civil rights litigation in the 1960s.”); Glennon, supra note __, at 887-900. 80 357 U.S. at 456 (concluding that “[w] e are unable to reconcile the procedural holding of the Alabama Supreme Court in the present case with its past unambiguous holdings”). 81 Id . at 458. 82 See, e.g., NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297-300 (1964); Barr v. City of Columbia, 378 U.S. 146, 149 (1964). See also Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 105-07 (1938) (rejecting a state court’s determination of whether a contract existed because it conflicted with numerous earlier decisions of that court). 83 Bush , slip opinion at 4 (concurring opinion). 84 See Bush , slip opinion at 7 (Stevens, J., dissenting) (noting that what must underlie the concurring Justices’ unwillingness to defer to the state court’s interpretation of state law “is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed”). 85 See id ., slip opinion at 6 (Ginsburg, J., dissenting) (objecting that the Florida Supreme Court ought not be “be bracketed with state high courts of the Jim Crow South”).