The jurisdictional struggle started just hours after Judge Thomas Penfield Jackson issued his break-up ruling and, since then, hardly a day goes by without a new legal brief. Microsoft wants the case to proceed to the Circuit of the Court of Appeals in the District of Columbia, where the company has had success before. The Feds are using an obscure rule to send the case directly to the Supreme Court. Put simply, both sides made legal maneuvers that prevented the opposition from pursuing its preferred court.
If the case is likely to reach the Supremes anyway, what’s the fuss about? The stakes are high. Heading straight to the highest court with a win–in this case the government’s immense victory–puts momentum on the Feds’ side. The other edge for the government: the Supreme Court typically doesn’t so much examine the facts as scrutinize how the law is applied to those facts. That means Judge Jackson’s version of facts could remain largely unscathed.
Microsoft wants to assail Jackson’s factual findings, which the company called “nothing more than sweeping, conclusory assertions,” as well as his legal and procedural rulings. An appeals court is much more likely to review all those issues than the highest court. More important, if the appellate court rules, as it did before, that Microsoft’s building its Web browser into Windows was lawful, it could cut the heart out of the government’s case.
The appeals court said it would hear the case quickly. Many antitrust experts say the four Republican appointees on the appeals court will lean toward Microsoft, while the three Democratic appointees will lean toward the government. The Supreme Court is far trickier to handicap. Presumably, Justices Rehnquist, Scalia and Thomas would side with Microsoft, while Justice Stevens would adopt the government’s argument. The remaining five are tossups.
All the procedural wrangling may be meaningless in the end. The Supreme Court, which may not decide for months whether it will hear the case, could easily send it down to the court of appeals. Many observers think that will happen, since the Supreme Court would then have the benefit of other jurists’ opinion. And while few antitrust experts think a breakup will survive, no one thinks Microsoft will walk away without some punishment. Whatever happens, one thing is certain: there’s no such thing as a ceasefire in the Microsoft antitrust case.
