DOJ Asks Supreme Court to Hear Microsoft Appeal

The United States Department of Justice today urged the Supreme Court to hear the landmark antitrust case against Microsoft Corp. immediately.

The high court accepted the case under the Expediting Act of 1903, which allows cases of general public importance to go directly to the highest court in the land instead of slogging through years of appeals.

Microsoft appealed the expedition in a filing last month, stating that the case deserved the due process of appeals. The D.C. Court of Appeals, which would hear the case if it is not expedited, has ruled in Microsofts favor in the past.

The DOJ doesnt want that court even looking at the case. In its 30-page filing (supported by 15 pages of addenda citing precedent and a glossary), the government argues two points. One, resolving the case is so important to the public and the technology industry that expediting it is the most prudent course; and two, Microsofts arguments to the contrary are not persuasive enough to warrant an appeals hearing.

“This suit has immense importance to our national economy,” wrote the DOJs lawyers, playing a variation on a Microsoft theme throughout the trial. “It is especially important to the reapidly developing high-technology sectors, which need to know how they will be affected by the remedies resulting from this case and, more generally, how this Courts antitrust jurisprudence applies to a dominant firm in their marketplace.”

Sharp summary

The DOJ document has some deft turns, doing in its first 12 pages what no other document has: summarizing the entire case with hyper-efficiency.

It alternately trudges through the legal details in its main body while highlighting in footnotes some of the more colorful vignettes from the case that reflect poorly on Microsoft. At one point, the DOJ wends through evidence of contractual restraints on the browser and then uses a footnote to quote Microsoft senior vice president Jim Allchin saying in an e-mail to group vice president Paul Maritz, “[W]e are not investing sufficiently in finding ways to tie IE and Windows together…”

The document is also heavy on citation of both the case itself and precedent-setting cases that are meant to convince the Supreme Court it should bypass the appellate stage.

The Supreme Court has utter control. It gets to choose if it will take the case or send it back to the appeals court, when it wants to hear the case, and on what parts of the case it will hear and rule.

The high court is expected to decide if it will hear the case in September.

Microsoft, if it chooses to do so, can respond to the DOJs filing on August 22.