Supreme Court Gives Microsoft Poker Face

A decision by the Supreme Court to hear an accelerated Microsoft appeal does not mean the nation's highest court will side with the government on the merits of the case, an antitrust attorney said. The Supreme Court on Sept. 8 releases its next set of orders, which could contain a decision whether or not to take the Microsoft appeal. It is more likely, however, that the nine justices will decide at their first weekly conference on Sept. 25, said the attorney, who is versed in civil procedure. The Supreme Court opens its session on Oct. 2, when it could also decide.

"There are no guarantees when the justices will decide," said Andrew Gavil, law professor at Howard University, Washington, D.C. "It's the Supreme Court -- they can do anything they want. And there is little precedent here in how to handle expediting cases."

The U.S. Department of Justice and 19 states asked the Supreme Court to hear the landmark antitrust case directly, without the input of the appellate court, because the case is so important to the economy. A seldom-used law, the Expediting Act, is the government's vehicle to bypass the lower court, which previously ruled in favor of Microsoft. The AT&T breakup is the only case in which the law was ever used.

Microsoft has said the case is too complex to bypass consideration by the Court of Appeals.

Gavil said he believes the Supreme Court will accept the case. But trial watchers should not assume that decision means the nation's highest court favors the government's arguments in its charges that Microsoft violated federal antitrust law, he said.

"It has nothing to due with the merits of the case, but institutional forces," Gavil said.

The Attorney General, the Justice Department's antitrust division chief, and the Solicitor General of the United States seek the accelerated high court review. And U.S. District Judge Thomas Penfield Jackson, who presided over the trial, certified it to the Supreme Court.

"If the justices are perceiving the question of jurisdiction as an institutional one, they are likely to be receptive to the government's arguments [to accept the case]," Gavil said.

There are also historical forces at work. The Supreme Court hasn't heard an expedited antitrust case in 18 years.

"If the court says no here, what would it take to hear an expedited case?" he said. "If the Supreme Court denies review, it will be a bigger loss to the government than granting review is to Microsoft. It would be a slap in the face to the Justice Department. But if the Supreme Court decides to accept the case, it would be a mistake to interpret it to mean that the justices will side with the government."

George Washington University law professor William Kovacic also said a rejection of the expedited case will hurt the government more.

"A denial really stops the government in its tracks," Kovacic said.

He said it sets them up for another 20 months with no remedy and on a path to the appellate court.

But Kovacic said he thinks the justices will reject the case very narrowly.

"It's going to be a photo finish," he said.