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The Certificate of Division

From 1802 until 1895, some cases in the U.S. circuit courts—then the main federal trial courts—reached the Supreme Court of the United States through a certificate of division despite falling outside the Court’s normal appellate jurisdiction. Congress established this mechanism to resolve tie votes in circuit courts staffed with two judges. Certificates of division occasionally resulted in broadly significant legal rulings. Perhaps the most famous example is Swift v. Tyson (1842), the case that provided for the federal courts’ use of general common law in diversity-of-citizenship cases, until it was overruled by Erie Railroad v. Tompkins in 1938. This spotlight provides a brief history of the certificate of division and the legal rules governing its use.

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When Congress established the circuit courts in the Judiciary Act of 1789, each of these courts was staffed by three judges: two justices of the Supreme Court riding circuit and a U.S. district court judge. The courts’ original structure made tie votes unlikely. But after the justices complained to President George Washington about the heavy burdens of riding circuit, Congress in 1793 reduced the number of justices required to hold a circuit court from two to one. Ties were now more likely, but a 1792 requirement that justices rotate their circuit assignments each year provided a way to break them. If there was a tie vote, the case would be held over until the following year, when another justice would break the tie by either agreeing with the district judge or with the other justice.

In February 1801, the outgoing Federalist majority in Congress reorganized the judicial system to provide the circuit courts with their own judges (sometimes referred to as the “Midnight Judges”) and eliminate ties with three-judge courts, but the new Republican majority repealed the legislation in 1802. Supreme Court justices returned to circuit riding, but unlike before, they were assigned to particular circuits semi-permanently rather than rotating among them. But this created the potential for tie votes with no method of resolution, unless Congress addressed the situation.

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Congress did offer a solution in the Judiciary Act of 1802, enacting the first legislation to provide for a certificate of division. Section 6 of the Act specified that the judges of a circuit court, if divided on one or more questions of law, could certify those questions to the Supreme Court on the request of a party or their counsel. Proceedings in the circuit court could continue while the legal questions were pending in the Supreme Court as long as the circuit judges believed the case would not be adversely affected. Once the Court decided the certified questions (typically with the participation of the justice who had heard the case below), it would give the circuit court instructions on those questions. The certificate of division thus created something akin to an “interlocutory” appeal (an appeal made while a case is still pending in the trial court) long before Congress passed statutes authorizing such appeals explicitly in limited circumstances.

The certificate of division allowed some disputes to reach the Supreme Court when they otherwise could not. For example, some civil cases did not meet the minimum amount-in-controversy requirement (then $2,000) for the Court to exercise appellate jurisdiction, but this requirement did not apply to certificates of division. Of even greater importance, criminal cases could not be appealed to the Supreme Court (not until the late nineteenth century), so for many years the certificate of division was the only means by which the Court could review criminal-law issues.

The Court’s jurisdiction over certified questions from the circuit courts was mandatory, but the Court imposed some limitations on the practice. In 1804, for example, the Court responded to a question in the first certificate of division it received by stating that it would examine only the specific questions certified and not the entire case. On several occasions, the Court declined to accept a certificate of division that was so comprehensive that it appeared to be an attempt to have the Court decide the whole case. The Court also refused to answer some certified questions on the grounds that they presented factual questions or involved matters over which the circuit court had discretion.

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From roughly the 1820s to the 1850s, Supreme Court justices riding circuit sometimes used the certificate of division to bring legal issues of their choosing before the full Court. To generate a pro forma division (i.e., a division manufactured to settle a legal question rather than one arising from a genuine dispute), a justice and district judge would agree to disagree with the aim of certifying a particularly important legal question to the Court. This practice, which required the acquiescence of at least one party, gave the justices a limited power to shape the Court’s docket at a time when they generally lacked the discretion to do so (a circumstance altered by the Judges’ Bill of 1925).

The certificate of division also provided the Court with a greater opportunity to shape the law early in the nation’s history, when many major legal questions were unsettled. Justices riding circuit, particularly under Chief Justice John Marshall (1801–1835), occasionally wrote to one another about issues they hoped to certify to the Court. Possible strategic uses of the certificate of division were to bolster the Court’s legitimacy or to correct a mistake. In 1818, for example, the Court issued a sharply criticized decision giving a narrow statutory interpretation that hindered the federal government’s ability to combat piracy. Two years later, the Court took the opportunity to reconsider its decision, obtaining another piracy case via a certificate of division and reading the same statute more broadly.

The Marshall Court generally took a permissive approach to certificates of division, allowing liberal use of pro forma divisions (in which Marshall himself took part) and permitting certifications that effectively transferred a whole case to the Court. In contrast, under the leadership of Marshall’s successor, Chief Justice Roger Taney (1836–1864), the Court more often found fault with certificates of division, becoming openly critical of the pro forma approach (eventually resulting in its disappearance) and more likely to reject certified questions that were interpreted as dispositive of a whole case. Chief Justice Taney’s position was based largely on constitutional concerns: if the Court were to dispose of entire cases in the first instance or accept certifications where no true division of opinion existed, it would arguably be exercising original jurisdiction in ways not envisioned by the framers of the Constitution, who fashioned the Court primarily as an appellate tribunal, while providing for original jurisdiction only in a carefully defined set of cases. Relevant to this point was Marshall’s ruling in Marbury v. Madison (1803) that Congress’s power to define federal jurisdiction did not include the ability to expand the Court’s original jurisdiction beyond that granted by Article III.

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One Taney Court ruling, Nelson v. Carland (1843), excluded an entire category of cases from reaching the Court by certificate of division. In 1842, U.S. District Judge Robert Wells of Missouri dismissed a case on the grounds that the Bankruptcy Act of 1841 was unconstitutional. Concerned members of the St. Louis bar, wanting to secure a Supreme Court ruling affirming the constitutionality of the Act as quickly as possible, requested assistance from U.S. District Judge Thomas Monroe of Kentucky, who was also hearing a bankruptcy case. As permitted by law, Judge Monroe certified the question of the Act’s constitutionality to the U.S. circuit court. Then Judge Monroe and Justice John Catron, sitting as circuit judges, submitted a certificate of division on the question to the Supreme Court. The Court dismissed the certificate on the grounds that district judges, who heard bankruptcy cases in the first instance, were not permitted to sit on the circuit courts in cases they had heard in the district courts. The ruling made a certificate of division in a bankruptcy case impossible and, because the Court lacked appellate jurisdiction over bankruptcy cases, eliminated the only potential method for the Court to review bankruptcy issues (Congress repealed the 1841 Act soon after).

In 1869, Congress provided the circuit courts with their own judges for the first time since the Federalists’ short-lived 1801 legislation. A circuit court could be held by any two of the Supreme Court justice assigned to the circuit, the circuit judge, and the district judge, or by any of those judges alone. (While the Judiciary Act of 1802 had also allowed a single judge to hold a circuit court, its language made clear that two-judge panels were to be the norm. The 1869 Act made no such implication.) Single-judge circuit courts became more common after the Civil War because of the rapidly rising caseloads that had motivated the creation of new circuit judgeships. The Supreme Court’s caseload made circuit riding more difficult, doubling between 1860 and 1870 and doubling again by the end of Reconstruction. While tie votes in the circuit courts were still possible, the increasing prevalence of single-judge courts made them less frequent, and use of the certificate of division declined. The significance of the decline was acute with respect to criminal cases, which still could not be appealed to the Supreme Court.

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Despite less frequent use of the certificate of division, Congress eliminated its use on an interlocutory basis in 1872 to eliminate trial delays and reduce burdens on the Supreme Court. Under the statute, legal issues could be certified to the Court only after final judgment in the circuit court, with the higher-ranking judge’s opinion controlling in the meantime. It was clear that the 1872 statute still provided a path to the Supreme Court for civil cases that could not otherwise be appealed. It was less clear whether Congress intended the same to be true of criminal cases, but the Court did review such cases under the 1872 Act until it was altered by the Revised Statutes of 1874. The new statute left the existing procedure in place for civil cases, while for criminal cases, it readopted a procedure substantially similar to that of the 1802 Act.

The Evarts Act of 1891, which created the U.S. courts of appeals, seemed to eliminate the certificate of division by providing that the Act’s procedures were to be the exclusive methods of getting a case before the Supreme Court. Nevertheless, certificates of division did not die out entirely until, in a pair of 1896 cases, the Court held explicitly that certificates of division had been repealed for both criminal and civil matters. The Evarts Act permitted the new courts of appeals to certify legal questions to the Court, with the Court having the option to instruct the appellate court on the law or to have the entire case sent up for its review and decision. Because these cases came from appellate courts rather than trial courts, none of the constitutional concerns Taney had expressed about an expansion of the Court’s original jurisdiction were implicated. Unlike the Court’s now-defunct jurisdiction over certificates of division, which was more or less mandatory, the Court had discretionary jurisdiction over certified questions from the courts of appeals, and the practice fell into desuetude in the last decades of the twentieth century.

Jake Kobrick, Associate Historian
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Related FJC Resources:
See a chart summarizing the jurisdiction of the Supreme Court.

Read essays on the jurisdiction of the federal courts.

Browse an exhibit on cases decided by Supreme Court justices while riding circuit.

Further Reading:
Arkin, Marc M. “Rethinking the Constitutional Right to a Criminal Appeal.” UCLA Law Review 39, no. 3 (February 1992): 503–580.

Gilbert, D. Michael and Mauricio A. Guim. “Active Virtues.” Washington University Law Review 98, no. 3 (2021): 857–910.

Nash, Jonathan Remy and Michael G. Collins. “The Certificate of Division and the Early Supreme Court.” Southern California Law Review 94, no. 4 (May 2021): 733–784.

White, G. Edward. “The Working Life of the Marshall Court.” Virginia Law Review 70, no. 1 (February 1984): 1–52.


This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.