The U.S. Supreme Court made history Monday. The coronavirus lockdown forced the typically cautious court to hear arguments for the first time via telephone, and to stream the arguments live for the public to hear.
Chief Justice John Roberts was at the court as the telephone session began, one or two other justices were in their offices at the court, and the rest of the justices dialed in from home.
The first and only case heard Monday involved an arcane trademark question only a lawyer could love. Online travel search engine Booking.com is appealing a U.S. Patent and Trademark Office refusal to grant a trademark to the company.
With the justices asking questions in order of seniority, the first big surprise was that Justice Clarence Thomas, who in the past has gone years without asking a question, did ask one, several in fact, when it came his turn.
“Could Booking acquire an 800 number … that’s a vanity number, 1-800-BOOKING, for example?” Thomas asked Assistant Solicitor General Erica Ross.
Yes, replied Ross, but domain names pose a different problem than phone numbers. Ultimately, she argued “the core problem with Booking.com is that it allows [Booking.com] to monopolize booking on the internet” to the exclusion of other sites like hotelbooking.com.
Justice Stephen Breyer followed up when his turn came: “Same question as Justice Thomas … good morning, anyway … You can have a trademark that’s an address. You can have a trademark that’s a telephone number. So why can’t you have a trademark that’s a dot-com?”
Justice Samuel Alito noted that the court’s prior decision in this area of the law was more than 100 years old, and the statute dealing with trademarks was similarly enacted decades ago.
“How can a rule that makes sense in the internet age be reconciled with the language” in these “pre-Internet era” laws? asked Alito.
Next up to her lectern from her home was lawyer Lisa Blatt. This was her 40th Supreme Court argument and despite being a veteran, she said later that she was, as usual, sick to her stomach beforehand.
But once at the lectern “it’s always a rush of excitement,” she said, and this time it was a special rush.
“I loved getting a question from Justice Thomas … I would go to the phone for the foreseeable future if I could get Justice Thomas to ask questions. That was wonderful,” she said.
Indeed, despite the new format Blatt and Ross seemed to have had a good time.
“Your client would not object to the registration of any trademark that simply made a slight variation in Booking.com?” asked Alito.
“There’s a million booking registrations already,” parried Blatt.
Alito: “Would you just answer the question.”
Blatt: “They don’t and have not and would not.”
Not, she added, unless another company ripped off the trademark with no variation. That would be theft, she said.
So, when when the argument was over, what was her reaction?
“After I hung up, I screamed, ‘That was hard!’ Because you’re saying enough to answer, but not too much. And you don’t have any like visual feedback, so it was hard.”
In the end, she said, the argument felt more like an oral exam than an oral argument.
Tom Goldstein, publisher of Scotusblog, had a similar reaction. Goldstein, who has argued 43 cases before the court, said he thought the argument was probably more useful to the public than usual.
“But I bet it was less useful for the justices,” he said. “Because there was less opportunity to follow up on lines of questions and less opportunity to influence someone … so there’s much less engagement in the oral argument.”
Still there were no major hitches on this first day. Justice Sonia Sotomayor briefly forget to unmute her phone at one point, prompting a “Sorry, chief.” Justice Breyer’s voice broke up in static for a second or two. But as Goldstein observes, this was a big change for the court.
“Culturally a change, technologically a change. And it could have been a big embarrassment if it didn’t go well, but it went fine,” he said. “I think they’re happy.”