Article | Constitutional Law
The Certificate of Division and the Early Supreme Court
by Jonathan Remy Nash* and Michael G. Collins†
94 S. Cal. L. Rev. 733 (2021)
Keywords: Constitutional Law; Certification by Division
The history and development of Supreme Court review over state courts in the early republic is well known. The equally important history and development of Supreme Court review of federal trial courts under the “Certificate of Division” is not. This Article addresses this largely forgotten yet critically significant feature of the early Court’s appellate power. During much of the nineteenth century, the main federal trial courts were generally staffed with two judges—a Supreme Court Justice riding circuit and a resident district judge. As a result, there were often tie votes on questions of law. Congress’s remedy was the certificate of division, which called for mandatory interlocutory Supreme Court review when the judges were divided. This unusual and understudied appellate mechanism proved critical to the development of law and the role of the Court during the Chief Justiceships of Marshall and Taney, and it implicated procedural issues that are still relevant today.
As this Article will show, many of the early Court’s most important cases came to it via certificate of division. And certification produced almost as many Supreme Court decisions as did the Court’s direct review of the state courts, the more widely studied practice. In addition, because review was obligatory when there was division, disagreement between the judges
was sometimes feigned, in order to steer certain legal questions to the Court that the judges wished it to hear, many of which might otherwise have escaped review. In this regard, we include a heretofore unavailable dataset that collects all cases—civil and criminal—that reached the Court via certification. And we undertake an empirical analysis of the dataset to ascertain, among other things, which Justices used (and sometimes abused) the practice. This Article will also show how certification by division allowed for practices that scholars tend to assume arose much later. For example, it provided an early opportunity for interlocutory appeals from lower federal courts, and it provided Supreme Court Justices with a form of discretionary control over the Court’s docket (simply by disagreeing with the district judge), long before discretionary review became the norm. Finally, certification was important as one of a variety of possible approaches that judicial systems use to break ties—here, by allowing an appeal as of right to a higher court.
*. Robert Howell Hall Professor of Law and Associate Dean for Research, Emory University School of Law; Director, Center on Federalism and Intersystemic Governance, Emory University School of Law; Director, Center for Law and Social Science, Emory University.
†. Joseph M. Hartfield Professor of Law and Joseph W. Dorn Research Professor of Law, University of Virginia School of Law. We are grateful to Barry Cushman, Miguel de Figueiredo, Deborah Dinner, Michael Gilbert, Daniel Klerman, Ronald Krotoszynski, Leandra Lederman, Kay Levine, Caleb Nelson, Barak Richman, Fred Smith, Dane Thorley, Ted White, John Witte, and Ann Woolhandler for helpful discussions and suggestions and to Kedar Bhatia, Lucy Gauthier, and Justin Ian Sia for excellent research assistance. We received valuable feedback from presentations at the Midwest Political Science Association annual meeting (especially the input of Justin Wedeking, who served as discussant for the paper), the Canadian Law and Economics Association annual meeting, and the Midwestern Law and Economics Association annual meeting.