It’s a rarely used, dusty corner of the Supreme Court’s jurisdiction. And on Monday the Court decided to leave it undisturbed, rejecting a request by the 5th U.S. Circuit Court of Appeals to resolve a question that could affect prosecution of long-ago civil rights cases in the South.
Under federal law dating back to 1802, one way to get a case before the Supreme Court is for a federal appeals court to certify the question it raises — in other words, asking the justices to decide the question and instruct it on what to do. It has never been a frequently traveled path to the Supreme Court, but it has been allowed from time to time — though not since 1981. In a 1957 case, the Court suggested the appeals courts should resolve knotty questions themselves without certifying a question, except in “rare instances.”
