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It’s not often that a lawyer, never mind one with a big-league reputation, admits to calling a wrong shot. But Walter E. Dellinger, U.S. solicitor general in the early years of the Clinton administration, has done just that. In the heady days after U.S. District Judge Thomas Penfield Jackson’s June 7 order breaking up Microsoft Corp., Dellinger, one of the more authoritative pundits, said that the solicitor general would seek direct review of the landmark ruling before the U.S. Supreme Court, and that the high court was likely to take the case. “I was flat wrong,” Dellinger declared when asked for his take on the Justice Department’s Aug. 15 brief urging the high court to grant direct review of the Microsoft case. Dellinger said that he changed his mind after he “sat down to think about the reasons why” in anticipation of his address to the nation’s attorneys general, at their annual meet in Seattle in late June. His reason: “It would ruin their term to take it because it’s such a massive amount of material to absorb.” He told the attorneys general that there was no chance the justices would take the Microsoft case. And he said that the November election weighs heavily against the justices taking up the case. “This is not a good term for them to take the Microsoft case because there could be a change in administrations,” he said. Many observers say that a Bush administration might be inclined to settle the Microsoft case, which would render any court’s work on Microsoft’s appeal unnecessary. The Aug. 15 brief filed by Solicitor General Seth P. Waxman didn’t change Dellinger’s mind. He called it “unpersuasive.” The brief recalls two direct appeals of antitrust cases taken by the justices since 1974, both involving the 1982 breakup of AT&T. The Justice Department’s brief notes that in those cases, the United States argued that “delay in resolving the validity of the decree will have a broad and significant adverse impact on the telecommunications industry, on related industries including data processing and on the public in general.” The justices took direct review in both cases in 1983. That’s a far less persuasive argument today, said Dellinger, noting that the court takes far fewer cases these days than it did in 1983. And the Expediting Act’s standard — “general importance in the administration of justice” — is “so open-ended” that it gives the justices an out. “It leaves the court room to decide that it’s in the administration of justice to have the court of appeals decide it,” said Dellinger. “They are controlling their own jurisdiction.” The high court’s caseload for the last term reached a new low, according to Washington, D.C., solo practitioner Thomas Goldstein, a Supreme Court specialist. Goldstein is one of the pundits who are betting that the justices will say no to the Microsoft case, partly because their docket is already full. Dellinger was a minority of one among the pundits, until he thought better of his first instincts. “I was the holdout,” he said. “I wish this weren’t a newsworthy point, but I’m afraid that it is.” Microsoft was expected to file its reply brief with the high court on Aug. 22. A decision from the justices could come as early as mid-September.

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