Having set the Microsoft bonfire blazing, Judge Thomas Penfield Jackson just cannot seem to resist piling on the logs.
First, he found in favor of the U.S. Department of Justice (DOJ) by ruling that Microsoft abused its monopoly. Then he gave the government a second victory by ordering a breakup of the software giant.
And now, Jackson has moved to make sure that Microsoft’s appeal of his decision is not heard by a court that has been favorable to the company in the past. The judge has decided to send the case directly to the Supreme Court by invoking the Expediting Act, which has been used exactly twice — both times during the breakup of AT&T.
The Expediting Act is supposed to be reserved for cases involving the national interest. Now, it might be in the government’s interest to keep its juggernaut of victories going — momentum is everything in law, as in sports — but the national interest?
Come on. There are high stakes in the Microsoft case, but urgent and compelling national welfare concerns are not among them. The argument put forth by the antitrust lawyers is that Microsoft must not be allowed to keep its monopoly. Every day the status quo continues, they say, Microsoft is rewarded for damaging its competitors.
But Microsoft could fill a stadium with people willing to testify that Americans are better off, thanks to the contributions the company has made to building the high-tech industry in the past decade. There is some weight to the point of view that allowing Microsoft to remain a single entity is in the nation’s best interest. The company should at least be allowed to make its case through the normal appellate channels.
A Stitch in Time?
Furthermore, Jackson’s move seems designed to extend, rather than to expedite the legal battle. The appellate court would most likely have put the case on the fast track, but the Supreme Court will probably not hear it until next fall, after the justices return from a four-month summer recess.
The latest ruling did bring some good news for Microsoft — namely, a delay in the breakup sanctions that Jackson imposed. But even though Microsoft downplayed the downside of Jackson’s decision to leapfrog over the appellate court, the software giant lost a great chance to gain at least a temporary victory.
The same appellate court reversed Jackson’s order that Microsoft stop bundling its Internet Explorer browser with Windows. Bill Gates and company were clearly eager to appear before that bench again.
Is Justice Blind?
Before the appeals court is exactly where the case belongs — and where it may still end up. The Supreme Court generally takes on cases that involve fairly narrow issues of law on which it can make judgments about Constitutionality.
Take the most recent high court decisions: A ruling that student-led prayer before football games is unconstitutional; the defeat of a Massachusetts law that sought to punish companies for doing business with certain foreign governments.
Both cases centered on clearly defined issues. But the case against Microsoft — which took years for the government to assemble — involves a slew of allegations explained in thousands of pages of documents. It involves not only the business practices of a giant corporation, but also the inner workings of an entire industry that is still a mystery to many low-tech judges.
Does the Supreme Court want to do the work of bringing itself up to speed on the intricacies of software development and the nuances of strategic partnerships in the electronic age? Probably not. With hundreds of cases seeking high court attention each year — and considering that just a tiny fraction of them can actually be heard — it would seem contrary to the national interest to allow the Microsoft case to push everything else off the court’s docket.
A Mare’s Nest
In order to give the Microsoft appeal the hearing it deserves, a court might easily have to spend an entire term listening to arguments from both sides. That is a job best left to the appeals court.
The DOJ knows that it might lose there, at least on some points, so it is obvious why the government lawyers pushed to bypass the appellate court’s jurisdiction. But the competitive instincts of lawyers should not contaminate the judge. What is Jackson’s excuse for tossing aside proper legal procedure?
Perhaps the most compelling national interest in the Microsoft case is the critical need to restore fairness to the judicial process.