Certificate of division
[3] In criminal cases, the certificate of division was the only source of appellate jurisdiction from the circuit courts (save original habeas) until 1889.
[4] Inasmuch as the certificate of division permitted the Supreme Court some measure of control over its docket, it is a precursor to modern certiorari jurisdiction.
[9] In United States v. Daniel (1821), Chief Justice John Marshall recounted the history of tie-breaking methods on the circuit courts.
[13] The "short consultation" referred to in the official report, prior to the pronouncement of the reduced sentence, may have been with other members of the Supreme Court, which was then resident in Philadelphia.
[15] Specifically, § 6 provided: An 1872 statute modified the certificate of division procedure to require waiting for a final decision in the circuit court case first.
but the question answered was "whether the Circuit Courts of the United States can exercise a common law jurisdiction in criminal cases?
[22] Certificates of division began to fall into disuse as it became increasingly common for the circuit courts to sit with a single judge.
In United States v. Gooding (1827), for the Court, Justice Story wrote: Not every question or every criminal case was eligible for a certificate of division.
[29] Similarly, in United States v. Bailey (1835), the Court held that the question of whether the evidence was legally sufficient to support the offense charged could not be certified.
[31] In United States v. Hamilton (1883), the Court reaffirmed its earlier holdings that certificates could not issue from motions to quash an indictment.
[38] In order to insure that the certificate of division procedure would be available in Dartmouth College, "Story was closely involved from the outset with the litigation.
"[39] Early on, Dartmouth's lawyer, Daniel Webster, sought "to elicit the cooperation of Story in carrying the case to the Marshall Court through a pro forma certificate of division.
"[39] The Contract Clause question for which Dartmouth College is famous could have been appealed to the Supreme Court even if the case had been brought in the courts of New Hampshire (and it was); but, the "vested rights" argument, which Story and Webster regarded as potentially stronger, was not a matter of federal law and thus could not be appealed by writ of error.
[42] In addition to the Dartmouth College case (supra), there are other reports of certificates of division that were issued but never decided by the Supreme Court.
After the passage of the 1891 act, the Supreme Court initially continued to decide questions presented in criminal cases by certificate of division on the merits.
For example, when the en banc Fifth Circuit attempted to certify a question in 2009 (also a rare occurrence), the Supreme Court summarily declined to consider the case.
Several scholars have argued that certificates of division were pro forma, and that the judge and justice would merely agree to disagree, often without writing opposing opinions.
