The Certificate of Division and the Early Supreme Court

41 Pages Posted: 7 Feb 2020 Last revised: 9 Jun 2020

See all articles by Jonathan Remy Nash

Jonathan Remy Nash

Emory University School of Law

Michael G. Collins

University of Virginia School of Law

Date Written: February 5, 2020

Abstract

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.

Keywords: Judicial Review, Federal Courts, Supreme Court, Legal History, Empirical Legal Studies, Jurisdiction, Appeals Courts and Judges, Constitutional law

Suggested Citation

Nash, Jonathan and Collins, Michael G., The Certificate of Division and the Early Supreme Court (February 5, 2020). 94 S. Cal. L. Rev. ____ (Forthcoming 2021)., Virginia Public Law and Legal Theory Research Paper No. 2020-13, Emory Legal Studies Research Paper No. 20-1, Available at SSRN: https://ssrn.com/abstract=3532666 or http://dx.doi.org/10.2139/ssrn.3532666

Jonathan Nash

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Michael G. Collins (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-243-2385 (Phone)

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
99
Abstract Views
760
rank
296,853
PlumX Metrics