Justice Delayed for Consumers

Last week the Supreme Court issued a curt three-sentence ruling denying the federal government's request to allow the Microsoft case to bypass federal appeals courts and to hear the case directly. The decision, which indefinitely pushes back the date on which the software giant may be forced to comply with an earlier ruling ordering the company to split in two, was lauded by the Microsoft camp. However, for the thousands of software companies and millions of American consumers who suffer from Microsoft's anti-competitive behavior, the decision is merely another painful protraction of the long wait for a competitive, fair and consumer-friendly marketplace.

The decision sends the Microsoft case to the federal appeals court for the District of Columbia circuit and into what will likely be a more Microsoft-friendly courtroom. Two of the seven judges who will hear the appeal, Stephen F. Williams and A. Raymond Randolph, ruled in favor of Microsoft in a related appeal two years ago. Moreover, by removing the immediate threat of a final ruling, the decision gives Microsoft a stronger bargaining position in any settlement negotiations with the government. The decision, however, does not offer similar benefits to the Justice Department or to the American people. An extended federal appeals process will act as an unnecessary drain on Justice Department resources and will allow Microsoft to continue to wield unchecked market power.

Microsoft's most recent tactical maneuvering also gives strong reason to doubt its interest in an expeditious appeals process. The company's proposed timetable for the appeal includes a more than five-month window in which to file documents and a provision for allowing briefs to be more than four times the normal length. Microsoft claims that such provision are warranted by the complexity and monumental nature of the case at hand. Its argument, however, is ill-founded. While complexity and historical import demand a thorough and unbiased weighing of the facts and a fair adjudication the parties conflicting claims, they do not demand such an encumbrance on the court. The appeals court would be prudent to follow the government's more efficient counter-proposal and to proceed as swiftly and judiciously as possible.

Most troubling is that in light of the Court's ruling, the handling of the Microsoft case will inevitably have to be passed on to a new administration--a fact that may jeopardize the progress made in the case thus far. Under new leadership, the Justice Department could potentially sacrifice the government's strategic bargaining advantage in the name of a swifter, if more lenient, settlement with Microsoft, or even go so far as to drop out of the case entirely. Although the states that are parties to the suit would likely continue to fight, such actions would greatly reduce the monetary resources and manpower available to the prosecution. The new administration must, therefore, continue to steer the wise course mapped by current Justice Department officials.

The Microsoft case is one involving a fast-moving market and a critical sector of the economy. If any case deserved expedited review by the high court, this case should qualify. Unfortunately, the Supreme Court rejected the reasoning of Justice Stephen Breyer and decided otherwise. It is now in the interest of both justice and the nation's economic well-being that a final ruling be issued in the Microsoft case as soon as possible, and also that such a ruling take substantial measures to curb Microsoft's abuse of its disproportionate market power. Anything less would make a travesty of the judicial process and the competitive markets in which this country takes pride.