US Supreme Court denies the government's Microsoft appeal, 8-1,

September 26, 2000 10:09 AM

US Supreme Court denies the government's Microsoft appeal, 8-1, and sends it back to the goddam Circuit Court for yet another year of hysterical lies and bullshit. Score one for the enemy.
posted by Snarl (10 comments total)

Actually, this is the normal course of events and exactly the way it should have transpired. I am far more alarmed by the government's attempts to short-circuit the normal judicial process than by anything Microsoft is alleged to have done.

The real reason the government wanted to skip the Court of Appeals hearing is that the DC Circuit has ruled against the government before. All this talk of "expediency" is code for we don't want to have the appeal heard by a court that thinks we're nuts.

It's also a code for we brought the case too late into the administration's term to see it through and now we're trying to cover our asses. I'm not sure what the Gore position is on the matter, but it's pretty clear that a Bush Administration would resolve this matter much differently.
posted by mikewas at 10:27 AM on September 26, 2000

Chief Justice William H. Rehnquist declined today to disqualify himself from Microsoft cases, even though his son is a partner in a Boston law firm hired by Microsoft in another case. "My son's personal and financial concerns will not be affected by our disposition of the Supreme Court's Microsoft matters," the Chief Justice said in a statement. "Ya know, that boy's makin' a shitload of money," he did not add.

posted by Snarl at 10:28 AM on September 26, 2000

Um, I don't know who you are, mikewas, but there was no talk of 'expediency.' There was some discussion of the Expediting Act, a 1913 US law that *required* the Supreme Court to hear anti-trust appeals. Congress modified it in the 1970s to allow the Court to reject them. Stupid law, apparently.
posted by Snarl at 10:31 AM on September 26, 2000

Title 15 § 29 USC (United States Code)

Sec. 29. Appeals

(a) Court of appeals;

review by Supreme Court Except as otherwise expressly provided by this section, in every civil action brought in any district court of the United States under the Act entitled ''An Act to protect trade and commerce against unlawful restraints and monopolies'', approved July 2, 1890, or any other Acts having like purpose that have been or hereafter may be enacted, in which the United States is the complainant and equitable relief is sought, any appeal from a final judgement entered in any such action shall be taken to the court of appeals pursuant to sections 1291 and 2107 of title 28. Any appeal from an interlocutory order entered in any such action shall be taken to the court of appeals pursuant to sections 1292(a)(1) and 2107 of title 28 but not otherwise. Any judgment entered by the court of appeals in any such action shall be subject to review by the Supreme Court upon a writ of certiorari as provided in section 1254(1) of title 28.

(b) Direct appeals to Supreme Court

An appeal from a final judgment pursuant to subsection (a) of this section shall lie directly to the Supreme Court, if, upon application of a party filed within fifteen days of the filing of a notice of appeal, the district judge who adjudicated the case enters an order stating that immediate consideration of the appeal by the Supreme Court is of general public importance in the administration of justice. Such order shall be filed within thirty days after the filing of a notice of appeal. When such an order is filed, the appeal and any cross appeal shall be docketed in the time and manner prescribed by the rules of the Supreme
Court. The Supreme Court shall thereupon either (1) dispose of the appeal and any cross appeal in the same manner as any other direct appeal authorized by law, or (2) in its discretion, deny the direct appeal and remand the case to the court of appeals, which shall then have jurisdiction to hear and determine the same as if the appeal and any cross appeal therein had been docketed in the court of appeals in the first instance pursuant to subsection (a) of this section.

Hmmm... going through the rest of the sections, none of them say anything about the Supreme Court being *required* to hear anti-trust laws. Even if modified, the section would still be a part of the original code, but would be marked *REPEALED* next to it... Nope... nothing there.

Even so, if such a law existed, I am sure it would be highly scrutinzed as it denies the accused (Microsoft), full due process of the law, in which this case would be the hearing of the case in the Supreme Court, from which there are NO appeals.

To have full benefit of due process, which everyone, including evil empire monopolistic corporations deserve, they must be able to take their appeals through each step in the appeal process.

Granted, this process will most likely end up at the Supreme Court, but at least they will have been given full benefit of the law.
posted by da5id at 11:15 AM on September 26, 2000

Ummm, I don't know who you are, Snarl, but you must be talking about the Expiditing Act of 1903 (not 1913), and the DOJ clearly made the argument that it should be expidited due to what they claimed was its incredible importance to the American people and economy, not that it was required by the law. I quote from the DOJ brief submitted to the Court:

"As we have explained in our response to Microsoft’s
jurisdictional statement, Microsoft’s appeal from the
district court judgment presents a matter of general
public importance in the administration of justice that
warrants direct review by this Court."

Indeed, in the same brief, the DOJ acknowledges that direct appeal to the Court is only available "upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."

Obviously, 8 Justices did not see it that way. And since it is the rules of both Congress and the Court that determine the proper path of appeals through the system, both of which now point to the Appeals Court being the next stage of the U.S. v. Microsoft battle, apparently mikewas isn't as uninformed as you'd like him to appear to be.
posted by delfuego at 4:20 PM on September 26, 2000

In addition, Snarl, I don't understand something -- the article that you point to acknowledges that the DOJ asked for the direct appeal based on its belief of extreme importance, as well as that it's a bypass of the normal appeals process. What is your argument, exactly?
posted by delfuego at 4:50 PM on September 26, 2000

He doesn't have one... he is just pissed that the justice system isn't working the way he thinks it should, even though, in this case, it is working the way it was meant to.

And granted, Rhenquist is old, but he doesn't vote for the other Judges, 7 of whom, cast their vote NOT to hear the case, and return it to the appeals court, where it belongs, until the appeals court makes a decision, and that decision gets appealed. At that time, the case will go to the Supreme Court, but of course, it will be a moot point, like it is already... It was a moot point 6 months ago.
posted by da5id at 6:47 PM on September 26, 2000

So, if Congress can create the "inferior" courts, it can most certainly take away their jurisdiction.

Snarl, you don't know who I am, but you seem to have confused jurisdiction with due process.

If Congress exercises its constitutional authority over the structure of the judicial system in such as way as to deprive litigants of due process, it has violated the Constitution. A great legal scholar such as yourself surely understands that the plenary powers of Article I are limited by the due process restraints of the Fifth and Fourteenth Amendments.

In any event, you have demonstrated my original point, that review by the Court of Appeals is, and has been since 1970, the "normal course of events." (Thank you for the assist.) It is pretty clear from the modern structure of the statute that only exceptional cases go straight to the top...

...and 8 out of 9 sitting Justices think that this is NOT an exceptional case. This includes such notorious right-wingers as Justice Ginsberg, Justice Souter, and Justice Stevens, and flagrant ideologues like Justice Kennedy and Justice O'Connor. (psst... that's 5.)

Sorry that the case didn't go the way you wanted it... no, actually I'm glad it went that way. Sorry about your Apple stock, though.
posted by mikewas at 8:31 PM on September 26, 2000

Oh, and Snarl? Mike's an attorney. :-)
posted by baylink at 8:51 PM on September 27, 2000