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  28 reaching the fundamental constitutional question. 92 By the time Bouie arrived on the Court’s docket, the 1964 Civil Rights Act–which would moot the state action issue by creating a federal statutory prohibition on race discrimination in places of public accommodation–was fi- nally nearing passage, after the longest filibuster in the history of the United States Senate. 93 In that setting, the Justices understandably were reluctant to affirm, for the very first time, the conviction of a sit- -in demonstrator. Thus the Court “invented” a due process objection to Bouie’s conviction, rejecting the state court’s view that the state criminal trespass statute always had forbidden refusals to depart after notice to leave, and holding that to interpret the provision this way now represented an unforeseeable expansion of the statute, in vio- lation of the Due Process Clause. Nobody who teaches criminal law would recognize this conception of what due process notice requi- res. 94 Leading criminal law casebooks treat Bouie as bad law–a case that can be accounted for only by the Justices’ political sympathies for the civil rights movement. 95 Thus, the only legal principle that Bouie genuinely stands for is that sometimes the Supreme Court, for political reasons, will decide cases in a lawless fashion. In one sense, then, though not the one the conservative Justices intended, Bouie was the perfect case for them to cite in Bush . After laying the groundwork for reducing the deference owed to the state court’s interpretations of Florida law, the concurring opi- nion proceeds to enumerate several ways in which that court’s inter- pretations (were said to have) violated the legislature’s design. The concurring Justices raised the following objections to the state supre- me court decision in Bush 96 : it deprived the secretary of state’s certifi- 92 See, e.g., Griffin v. Maryland, 378 U.S. 130 (1964) (reversing trespass conviction on ground that arrest by park em- ployee who had been deputized as a sheriff constituted state action); Garner v. Louisiana, 368 U.S. 157 (1961) (reversing disburbing-the-peace conviction on due process ground of total absence of evidence). 93 See Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960-1972, at 151 (1990). 94 See, e.g., John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189, 211 (1985) (arguing that the “core concept of notice as a requirement of fairness to individuals” focuses on “whether the ordinary and ordinarily law-abiding individual would have received some signal that his or her conduct risked violation of the penal law”). 95 See, e.g., Peter Low, et al., Criminal Law: Cases and Materials 100 (2d ed. 1986) (speculating that “the Court’s applica- tion of [fair notice] principles to the Bouie facts was somewhat more rigid than would have been the case if a more ordi- nary trespass was involved” and noting that “the Supreme Court itself understands the context of Bouie as qualifying its message, . . . [since] . . . Bouie has not become a substantial constraint on the interpretation of ambiguities in subsequently construed federal criminal statutes”). 96 Bush , slip opinion at 7-12.