36. Certificates of Division

From 1802–1911, Congress required the Supreme Court to hear appeals in cases in which circuit court judges "divided." It ought to consider an updated form of circuit-triggered mandatory appeals.

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Although the last few installments have focused on some of the Court’s big decisions from last month, I thought I’d take a brief, nerdy hiatus in today’s issue to talk about an obscure old practice a form of which may well be worth revisiting: The power of pre-1911 circuit courts to force a case onto the Supreme Court’s docket by issuing a “certificate of division.” With the justices exercising their discretion to hear fewer and fewer cases each Term, one potential subject of Court reform is for Congress to expand the Court’s “mandatory” jurisdiction. As I argue below, giving circuit judges at least some role in that expansion has a lot to commend it.

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On the Docket

Although there’s no regular business currently expected from the justices, the Court received an emergency application on Friday from the Mountain Valley Pipeline in a dispute over whether Congress acted unconstitutionally when, as part of the debt ceiling bill (section 324, to be precise), it issued a series of findings about the pipeline project and gave the D.C. Circuit exclusive jurisdiction over all challenges thereto. (As for how this ended up in the debt ceiling bill, well, it’s good to be Senator Manchin.) The constitutional issue revolves around the Supreme Court’s notoriously Delphic 1872 ruling in United States v. Klein—which imposes at least some limit on Congress’s power to direct the federal courts in how they dispose of pending cases (e.g., a statute that provides that, “in Doe v. Smith, the court shall rule for Doe.”). As Federal Courts professors go, I’m pretty sympathetic to Klein, but I’ll confess that I don’t see a Klein problem with what Congress did here.

The Fourth Circuit apparently did, issuing a trio of unexplained stays early last week that purported to block further construction of the pipeline pending the disposition of three petitions for review. In the application to the Supreme Court, the pipeline, represented by former Solicitor General Don Verrilli, asks the Court to either vacate those stays or to go even further and resolve the merits summarily by granting an extraordinary writ of mandamus (something the Court hasn’t done since 1962). Chief Justice Roberts (as Circuit Justice for the Fourth Circuit) has yet to formally call for a response, but that’s likely coming later today, with a ruling not long after the response comes back.

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The One First Long Read: The Certificate Era

The very first post I ever wrote for One First was about the evolution of “certiorari”—the Court’s power to choose which appeals it hears from lower courts (and, indeed, which issues to resolve within those appeals). Certiorari was a response to the downsides of an all-mandatory docket—where the justices had to hear every case over which they had jurisdiction.

One of those categories of mandatory appellate jurisdiction, though, was a bit less straightforward than it looked. And to understand how it worked, it’ll help to start with a brief reminder of the very different structure of Founding-era circuit courts. Although we’re used to thinking of circuit courts today as 13 standalone courts with their own judges, that’s not how they were set up in the Judiciary Act of 1789. Instead, there was a “circuit court” for each of the federal district courts, but no “circuit judges” until 1869. Under the 1789 Act, the circuit court was staffed by the local district judge and two (rotating) Supreme Court justices—a big part of why “circuit riding” was so onerous in the Court’s early years. (It’s also worth noting that, in marked contrast to the current structure, Founding-era circuit courts sat in many cases as trial courts—with Congress differentiating between cases in which district courts had original jurisdiction and those in which circuit courts would.)

As part of the tug-of-war over the Court carried out between the lame-duck Federalist Congress in 1801 and the Jeffersonian-controlled Congress in 1802, Congress in the Judiciary Act of 1802 streamlined circuit-riding—reducing circuit courts to the local district judge and a single circuit justice (thereby halving the justices’ circuit-riding duties). Of course, having exactly two judges sitting in a case raised the very real possibility that they would divide, 1-1. In cases in which the circuit court was sitting as an appellate court (reviewing a district court), Congress gave the tiebreaker to the justice (since the district judge had already voted). But in cases in which the circuit court was a trial court, Congress didn’t want to tip the scales. Enter, section 6 of the Judiciary Act of 1802:

This provision inaugurated the “certificate of division,” which was not just a convenient means by which circuit courts could get certain issues onto the Supreme Court’s docket including at an interlocutory posture (i.e., in the middle of the case); it was, in many cases (especially federal criminal cases), the only way to get particular legal questions before the full Court.

In addition to federal criminal cases, certificates of division also provided a way for civil cases to get to the Supreme Court even when they fell below the statutory amount-in-controversy requirement. One prominent example, as Jonathan Remy Nash and Michael Collins have noted in their excellent summary of the practice, was Swift v. Tyson—the landmark 1842 decision in which the Court sanctioned the power of federal courts to apply “general” common law (rather than state law) in cases in which federal jurisdiction stemmed from the “diversity” of the parties (i.e., that they were from different states).

Once certified, the Supreme Court had no discretion to decline to respond. But because one of the judges whose division was a predicate to certification was a justice, this procedure gave the justices at least some ability to add issues to their docket. And presaging future developments, the justices would sometimes go further than answering the question certified by a circuit court. In the Court’s (Fed Courts-famous) 1812 ruling in United States v. Hudson & Goodwin, for example, the circuit court had certified “whether the Circuit Court of the United States had a common law jurisdiction in cases of libel?,” but the Court decided “whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases?” Still, the Court tended to resolve only a specific question (and only a question of law, not fact), before returning the matter to the circuit court.

For a time, and entirely unsurprisingly, a number of certificates were clearly collusive—where the district judge and circuit-riding justice would pretend to disagree in order to trigger Supreme Court review. Nash and Collins document dozens of examples during the Marshall Court and a few more in the early years of Chief Justice Taney’s tenure. But by the 1850s, the Court had soured on pro forma divisions—suggesting that collusive certificates risked exceeding the Court’s constitutional authority by having the justices resolve non-adversarial disputes.

After the Civil War, even genuine certificates of division became far less commonplace. In 1869, Congress first authorized the appointment of standalone “circuit judges.” The 1869 Act still authorized certificates of division from any pair of the (now three) judges on each circuit court, so that, for the first time, a certificate could issue without a justice being involved (if the district judge and circuit judge divided in the circuit justice’s absence).

But an 1872 reform that was intended to reduce pressure on the Supreme Court’s docket heavily limited the practice—giving the tiebreaking vote to the “presiding” judge (the circuit justice if present, else the circuit judge) until a final judgment could be issued. Review could still be had in the Supreme Court, but only after that final judgment.

Curiously, when Congress tried to codify much of the existing universe of public laws two years later in the “Revised Statutes,” it (perhaps unintentionally) restored pre-1872 interlocutory certification in criminal cases. So from 1874–1891, certificates of division were still a way to bring interlocutory and final criminal appeals to the Supreme Court, and final civil appeals.

In 1891, Congress finally created standalone federal courts of appeals (staffed exclusively by circuit judges), and it closed a bunch of the gaps in the Supreme Court’s appellate jurisdiction (e.g., in federal criminal cases) that certificates of division had helped to fill. Not long thereafter, the Supreme Court held that the 1891 Act had implicitly repealed certificates of division in criminal cases, and it hinted that the same was true in civil cases (the latter ruling, in United States v. Hewecker, appears to be the very last time the Supreme Court ruled on a certificate of division). Still, the power to certify divisions in civil cases would at least nominally persist until Congress in 1911 finally abolished the old circuit courts in their entirety—as of January 1, 1912.

If you look at the Supreme Court’s appellate powers today, you’ll see a provision that bears at least some resemblance to the old certificate of division—28 U.S.C. § 1254(2):

Cases in the courts of appeals may be reviewed by . . . certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy.

But there’s one critical difference between the modern-day certification provision and the 1802 version: As the text of the former makes clear, the Supreme Court has un-cabined discretion (“may be reviewed”) to decide whether to accept or decline a certificate. As noted in the trivia below, the justices have not accepted a single certificate since 1981—and they’ve declined a couple of compelling candidates (two examples are the en banc Second Circuit’s 2005 certificate in Penaranda and the en banc Fifth Circuit’s 2009 certificate in Seale). Going all the way back to 1946, the Court has accepted only four certificates—a paucity lamented in Seale by Justices Stevens and Scalia.

So why should we care about the pre-1911 certificate of division? First, it’s a relevant data point in understanding the evolution of the Supreme Court’s docket over time (and the role the justices themselves often played in shaping it). Second, it provided critical jurisdictional flexibility in contexts in which the Court’s ability to review important issues might otherwise be thwarted. But third, and most importantly for present purposes, it is perhaps the best example in the Court’s history of Congress giving the power to actors other than the Court to choose at least part of the justices’ docket. Yes, a justice had to be involved in a division between 1802 and 1869, but the district judge also had to disagree; and, from 1869 until the practice died in the 1890s, a certificate could come from a division of two lower-court judges.

That strikes me not only as a powerful historical example of a context in which the Court did not have plenary control over its docket, and, perhaps, a model on which to build contemporary docket reforms. For those (like me) who think that the Court is hearing too few cases these days (the Court issued fewer than 60 signed decisions in argued cases for the fourth straight Term—after not having fallen below that number since 1864), one way to bring back a modest but meaningful set of mandatory appeals is to let lower-court judges pick (some of) them.

To that end, perhaps Congress should consider requiring the Supreme Court to resolve any question certified to the justices by a majority of active judges on any of the 13 federal courts of appeals—so long as resolution of the question could be conclusive of the dispute in which it’s certified. Requiring a majority of active judges (the same total required for rehearing en banc) should limit the certification power to questions of true significance, but it also would invest circuit judges in the Supreme Court’s docket to a degree that might be mutually beneficial. At the very least, regardless of whether such a reform is viewed as desirous and/or plausible, what can’t be denied is that it would be well-supported by the history outlined above.

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SCOTUS Trivia: The Last (Accepted) Certificate

As noted above, the last time the Supreme Court accepted a certificate from a federal court of appeals came in 1981, in the immediate aftermath of Dames & Moore v. Regan. That case, which had come to the Court in one big hurry, arose out of the federal government’s resolution of the Iranian hostage crisis—rejecting a series of statutory and constitutional challenges to the seizure of Iranian assets (and the nullification of attachments against those assets) by executive order. In Marschalk v. Iran Nat’l Airlines Corp., a distinct case that also arose out of the same executive actions, the Second Circuit had certified three questions to the Supreme Court:

1. Was the action of the President in suspending claims which may be presented to the Claims Tribunal and in declaring that they shall have no legal effect in the courts of the United States within his statutory and/or constitutional authority?

2. Was the action of the President in nullifying the attachments acquired on blocked assets and requiring the transfer of those assets to Iran within his statutory and/or constitutional authority?

3. Did the action of the President in suspending the claims or nullifying the attachments constitute a taking of property for which compensation must be paid?

The Court’s answer was … pithy:

Three Justices (led by Justice Powell) dissented, arguing that the wiser course would have been simply to vacate and remand the Second Circuit's decision for further consideration in light of Dames & Moore, rather than answering the questions abstractly (and without the benefit of additional briefing and argument).

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