Supreme Court unlikely to take MS case?

The ex-Justice Department official made his comments even as both sides in the case agreed to an accelerated timetable to submit written arguments to the high court on the merits of whether or not it should hear the case.

"There's no way (the Supreme Court) will take the Microsoft case," said Walter Dellinger, former Acting Solicitor General under President Clinton. "It would ruin their term." (Microsoft is a partner in MSNBC.)

Dellinger - who as the government's chief advocate before the Supreme Court argued more cases before the court, nine, than any other solicitor general in the last twenty years - advanced his theory saying the Justices would have to read some 30,000 pages of transcript just to bone up on the case.

The Supreme Court won't want to slog through that much information without first having it vetted by the Court of Appeals, Dellinger predicted. "Besides, they have a feast of cases already before them for the next term."

And the Justice Department shouldn't be so hasty to have the Supreme Court hear the case anyway, Dellinger said, adding, "I don't think they would be that sympathetic to the government's case."

The uncertain political climate is another strike against the Supreme Court taking the case directly, Dellinger said. "They don't want to have to change solicitor general's in the middle of the case," he said.

That scenario would happen if George W. Bush wins the upcoming presidential election.

The initial arguments for the Supreme Court taking the case would come from the current Solicitor General Seth Waxman, appointed by President Clinton. But his predecessor would be nominated by Bush, should he win the election.

"The last thing the Supreme Court wants is a brief in December by Waxman and have another brief in March saying, 'all we said in December has changed,'" Dellinger said, on the assumption that a Bush administration would be soft on antitrust issues.

Or Bush might have the Justice Department drop the case outright, Dellinger said. In that case, be ready, cautioned Dellinger, speaking to AGs during a luncheon meeting. "You might find yourself carrying the whole burden of this case at some point."

That scenario "is one the states have anticipated might happen for a long time," said James Tierney, former AG of Maine and a consultant to the AGs.

As Dellinger made his predictions, Waxman informed the Supreme Court that the government and Microsoft had agreed to a fast-paced schedule for submitting written arguments on whether the high court should hear the case, thus bypassing the Court of Appeals.

Microsoft will file on July 26th with the government answering on Aug. 15th. Microsoft will then get to file a rebuttal, if it chooses, on Aug.22nd.

Just last week Judge Thomas Penfield Jackson, who oversaw the initial antitrust trial, approved the government's request to bypass the Court of Appeals. A special rule for antitrust cases allows such legal maneuvering if any of those involved in the suit choose to make use of it.

Jackson earlier found the company guilty of violating antitrust laws. He ordered the company be split into two competing companies as a punishment.

Jackson's original order immediately placed that breakup plan on hold until all appeals were exhausted. However, Jackson, noting that the company was "untrustworthy" and "unrepentant" in its anticompetitive ways, ordered that a range of harsh business restrictions be imposed on the company during the appeals process as a way to reign in the Microsoft from further harming the market.

However, in a surprise move this week, Jackson froze all provisions of his breakup plan during appeal, allowing Microsoft to continue normal operations.

Several antitrust experts said Jackson's flip-flop on the business restrictions was actually a strategic move on his part. With those business restrictions in place, the Supreme Court would almost certainly have had to deal with a Microsoft request to freeze them.

But the high court isn't institutionally set up to deal with such motions antitrust experts said. In freezing all provisions of his breakup plan, Jackson gave the high court a "clean slate" to work from, said William Kovacic, an antirust professor at George Washington University. That move by Jackson, Kovacic said, improved the odds slightly that the high court would directly hear the case.

If the Supreme Court declines to hear the case, as Microsoft hopes, the Court of Appeals already has a schedule in place to begin their legal proceedings. Microsoft has said it plans to attack a wide range of issues in which its lawyers believe Jackson's ruling are wrong.

The Court of Appeals in Washington, D.C. has ruled favorably for Microsoft in the past and the company is hoping for more of the same. In an unusual sign that the Court of Appeals is eager to hear the case, the court has already decided that it will skip the usual three-judge panel that takes a first pass on the case and jump straight to hearing by a full compliment of judges.