MS asks again for Supremes not to hear its case

Last fling effort for lower court to hear appeal

MS on Trial Microsoft had its last fling yesterday when it filed with the Supreme Court a reply brief to the DoJ filing last week. It doesn't add much, merely reiterating its belief that the Expediting Act gives the Supreme Court unqualified discretion not to hear a case. The Supremes of course would know this anyway.

The DoJ has made it clear that it thinks Microsoft is trying to slow down the case by asking that the lower court hears the appeal first. Microsoft denies this, claiming that "No one is more anxious than Microsoft to see this case brought to a prompt conclusion". This is of course true - but to Microsoft, the only conclusion it will accept is one that proclaims its complete innocence.

Microsoft also makes an effort to claim that the AT&T case was "very different", arguing that the Supreme Court did not need to review the "complex factual record". It may turn out that Microsoft is unwise to "cast serious doubt on the reliability of the district court as a finder of fact" if the case ends up back with Judge Jackson for the supervision of "draconian relief". In support of its plea that the Supremes should not have "the onerous task of reviewing 'the entire evidence'", Microsoft cheekily cites a study group report on the caseload of the Supreme Court. The court will be well aware of this too, since the docket has been growing by more than 100 cases a year since 1960.

Microsoft perversely twists the reason for Judge Jackson staying his judgement by claiming that he would not have done this had he believed that "immediate relief was necessary to prevent serious harm to the nation’s economy".

In a footnote, Microsoft argues that it never "threatened to terminate the Windows licence of any OEM that preinstalled Navigator". The fuller story is of course that when Compaq tried to drop IE, Microsoft threatened to cut off its Windows licence - and that OEMs that did not load Navigator were likely to get a better licensing deal. A petition to the Supreme Court was filed yesterday by the DoJ asking that the plaintiff states be granted standing before the court. This is a belt-and-braces precaution, since Microsoft had challenged the states'standing.

With more than 7,000 cases on the docket and only around 100 selected for plenary review, the statistical odds must be that the case will be sent to the court of appeals. Much will depend on whether the justices happen to have any strong feelings in the matter. Although they may not themselves be computer literate, they have an average of more than three children each (Justice Scalia has nine), so they may be get some family advice.

Even if the case is heard, there would be no jury, no witnesses, and probably just 30 minutes for each side to present its case. The next term starts on 2 October, and the earliest any decision is likely to be announced is 3 October.

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