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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. [ABSTRACT FROM AUTHOR]

Federal Courts scholarship often focuses on access to federal courts for the decision of federal claims. At the same time, many Federal Courts scholars insist that state courts must hear federal causes of action, even when the lower federal courts are open to the same claims--the very federal courts regarded by such scholars as preferable to state courts. This Article takes issue with suggestions that the state courts have broad duties to entertain federal causes of action, whether statutory or constitutional. There is little early support for requiring state courts to entertain such claims and considerable evidence against it. In the twentieth century, however, the Supreme Court of the United States began to compel state courts to take jurisdiction of certain federal statutory actions--despite the absence of any explicit congressional requirement for states to do so--in a line of cases associated with Testa v. Katt. Neither the Supremacy Clause nor related arguments justify such compulsion. The Court also occasionally required state courts to provide certain constitutionally necessary remedies in a different line of cases associated with General Oil Co. v. Crain. The constitutionallycompelled- remedies strand was based on a requirement that there be adequate remedies for certain federal constitutional violations rather than a Supremacy-based command that the states must provide the same causes of action that the federal courts provided (as under Testa v. Katt). More recent decisions such as Haywood v. Drown and scholarly proposals lollowing the Supreme Court's 2017 decision in Montgomery v. Louisiana threaten to submerge the Crain line of cases into the Testa line, thereby possibly requiring greater state court conformity with federal-court versions of causes of action raising constitutional claims. Such uniformity, however, would diminish the role of the states in fashioning different, yet constitutionally adequate, solutions to problems of governmental illegality. State variation may be all the more important in light of frequently voiced dissatisfaction with federal habeas corpus doctrines and with constitutional tort litigation under 42 U.S.C. 1983. Increased state court duties thus will not necessarily enhance the enforcement of federal constitutional law, but might actually undermine it. [ABSTRACT FROM AUTHOR]