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At first blush, the Supreme Court's Sept. 26 decision not to take up the Microsoft case on a special expedited review might seem mostly about procedure and timing. After all, the case will likely still get to the high court eventually -- even after the federal appeals court issues its ruling. What difference does it make if the case winds its way through the federal-court system before the nation's highest court weighs in?
It makes all the difference in the world. Getting bumped to the D.C. Circuit Court of Appeals is the best news Microsoft has had in its antitrust case in years. The move greatly increases the odds that the colossus of Redmond will escape the corporate dismemberment Judge Thomas Penfield Jackson ordered on June 7. Gates & Co. may try not to show it, but a celebratory feeling must be in the air at the beleaguered company's headquarters.
PROBUSINESS COURT. For starters, the D.C. Circuit is one of the most conservative, probusiness benches in the nation. Counting the four judges who would be inclined to support Microsoft's legal philosophy isn't at all difficult. Start with two Reagan appointees, Douglas H. Ginsburg and Stephen F. Williams, longtime adherents of the so-called Chicago School of legal theory, which advocates a laissez-faire approach to antitrust.
Then add a third Reagan appointee, David B. Sentelle, a firebrand conservative who joined in a 1990 opinion criticizing the antitrust bent of the Justice Dept. Then you add Bush-appointee A. Raymond Randolf, who joined with Williams in a previous ruling in Microsoft's favor. That's not even counting Jimmy Carter-appointee Harry T. Edwards, whose track record is also probusiness.
But apart from the court's makeup, having an appeals court, rather than the high court, hear the case now suits Microsoft's legal strategy. The software giant wants to make a case for technical, legal, and procedural errors in the year-long trial conducted by federal jurist Jackson.
PICKING APART. The company will take on the way Jackson handled the case, and the breathtaking speed with which he opted for a breakup. It will question his impartiality given some of his out-of-school comments to the press about Microsoft. It will attack his factual findings -- starting with whether Microsoft is a monopoly in the first place. It will argue that Jackson followed the wrong precedent in taking the case. And it will sort through his legal conclusions and try to pick them off, one by one.
This type of approach is far too messy for the Supreme Court, whose justices like their arguments clean, concise, and imbued with constitutional law rather than civil procedure. Even if the court granted more than the customary hour for oral arguments, Microsoft would have to scale back its battle plans dramatically. "The Supreme Court likes to look at the big picture," says Thomas C. Goldstein, a Supreme court advocate and analyst. "It's not as good on the technical aspects of a case."
The appellate court, in contrast, is much more able and willing to wade through complex issues. In fact, most followers of the case now believe Microsoft has a good shot at getting the breakup order reconsidered -- even if some or all of the legal conclusions stand. This, in turn, could force Justice and Microsoft back to the bargaining table -- with Microsoft in the stronger position this time. It's still too early for a victory lap, but Gates & Co. finally have something to cheer about.
Copyright 2000, by The McGraw-Hill Companies Inc. All rights reserved.
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