Supreme Court Gives Reality A Chance To Catch Up To Politics: DeLong Op-Ed

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September 29, 2000

Headline: By Sending The Microsoft Antitrust Case Back To A Lower Court, The Supreme Court Gives Reality A Chance To Catch Up To Politics

WASHINGTON–By an 8-1 vote, the U.S. Supreme Court sent the Microsoft antitrust case back to the DC Circuit Court of Appeals, showing what should have been obvious from the start.

Given its druthers, the court wants to look at clearly posed issues of law based on trial records that settle a case's factual uncertainties. The Supreme Court also prefers to work with issues that have been addressed by the various courts of appeal so that the justices have a feel for the sentiments of the federal judiciary as a body. 

It wants to avoid cases rife with traps that can lure the justices into stupid mistakes. Applying these criteria, passing up Microsoft was a no-brainer.

The first problem was the strange nature of the trial court's findings of fact. The legal rule is that an appellate court reviews the law. It's bound by the trial court's factual conclusions, unless these are completely unsupported by evidence.

In Microsoft, the findings of fact were not crisp conclusions about things like “John went through the red light.” There were 412 of them, and they are a mixture of specific facts, complex conclusions about economics and the nature of the high-tech world, and predictions.

A reviewing court will have a tough time determining which of these are real factual findings to which it must defer, which of these are conclusions of law disguised as facts, and which are something else entirely.

For example, the trial judge's findings on such issues as “middleware” and “applications barrier to entry” have already been subject to serious lampooning.

The Supreme Court was surely not eager to decide whether these are in fact “facts,” whether it is bound by them or under what standard it would re-examine them. Nor could it have been happy about the intensive immersion in the record that would have been necessary to even begin to come to grips with these issues.

A second problem is the disconnect between the trial and the remedy. What started as a fast-track trial over a limited number of issues morphed into vivisection without benefit of anesthesia.

Given the truncated nature of the proceedings analyzing remedies, few lawyers not in the pay of Microsoft's competitors think the decision to split up the company has any significant chance of surviving appellate review.

So why should the Supreme Court get into a messy case on the grounds that speedy final resolution is important, when a remand is almost certain even if the verdict Microsoft violated the antitrust laws stands? 

Besides, evidence that the public interest requires quick resolution of this case is weak. Microsoft, which might be regarded as having the strongest interest in resolving uncertainty, does not think speed is essential. And from the public's point of view, issues of antitrust and the New Economy are going to be with us for some time.

A rush to instant resolution would be likely to produce instant mush rather than definitive resolution. The court's willingness to let issues ripen can send impatient lawyers into paroxysms, but it sometimes has its benefits.

The case also has great potential for making the reviewing judges look foolish. The pace of change in the computer industry is such that a decision reached today could be clearly silly before the ink on the opinion dries, and the intense politicization is distorting all the arguments.

In such circumstances, the chances of looking wise are thin. The court is obsessively aware of its need for institutional legitimacy. Why should it risk foolishness when there's no clear gain to be had and no real need to act? 

Finally, trial lawyers are a weird breed. They enjoy winning a bad case because that proves they are great litigators.

The justices know this mindset well. The antitrust division's push for quick review may well have caused the court to suspect that Joel Klein (the soon-to-be-retired antitrust chief at Justice) and company believe their victory rests on a foundation of sand and want to nail it down before reality could catch up.

It was not in the institutional interest of the Supreme Court to be cozened into going along. Quite the reverse. The court wants to give reality every chance to catch up before it commits itself on this one.

So the Supremes said, albeit in appropriate judicial language: “Back to the DC Circuit it goes, and guys–have fun.”

James V. Delong ([email protected]) is a senior fellow at the Competitive Enterprise Institute in Washington, where he works on the Project on Technology & Innovation. His views are not necessarily those of BridgeNews, whose ventures include the Internet site www.bridge.com.