 Accordingly , § 6 of the Judiciary Act of 1802 provided that the circuit courts could certify questions of law to the Supreme Court if the judges were divided on that question . 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 . For example , with the circuit court decision leading up to United States v. Marchant ( 1827 ) , the reporter records that " [ t ] he district judge concurred in this opinion ; but as it was a matter of not infrequent occurrence , and important to the practice of the court , the judges afterwards divided in opinion for the purpose of obtaining a solemn decision of the superior court . " Similarly , the United States v. Ortega ( 1826 ) circuit court opinion notes that the " point was taken to the supreme court upon a proforma certificate of a division of opinion in this court . " 
