Supreme Court takes modest but historic step with teleconference hearings

WASHINGTON - The Supreme Court's first teleconference oral argument went off relatively smoothly Monday, and its orderly round of questioning was enough to entice Justice Clarence Thomas, who usually asks none.

Forced from gathering in their grand Washington courtroom because of threats presented by the coronavirus, the justices spent a little more than an hour on a trademark dispute case, the outcome of which will not enter the court's vault of landmark decisions.

But because the arguments were widely broadcast by media outlets, it made history as the first time the public could listen in remotely as advocates made their cases. The court doesn't allow cameras in its courtroom, has never allowed simultaneous audio broadcasts and only rarely allows tapes of its hearings to be released the same day.

A transcript and recording of the proceedings were later posted on the court's website, supremecourt.gov.

Instead of the usual free-for-all, the justices asked questions in order of seniority, with Chief Justice John Roberts going first.

Justice Sonia Sotomayor apparently became the first justice to forget to unmute her audio. There was silence when Roberts called on her. "Justice Sotomayor? Justice Sotomayor?" he called.

"I'm sorry, chief," she eventually answered.

At another point, Justice Stephen Breyer's audio turned into an indecipherable squawk. But it was quickly corrected.

The day's surprise was Thomas, who at times on the court has gone a decade without asking a question. He has given various reasons such as that he believes the time should be spent on lawyers presenting their cases and that his colleagues ask too many questions.

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But, coming just after Roberts in the questioning order, he said he had a couple of questions for the government's lawyer, and then did the same for the other side.

Lawyer Lisa Blatt was arguing her 40th case before the high court, and it was the first time she had ever fielded a question from Thomas. She argued the case from her dining room in Northwest Washington. Justice Department lawyer Erica Ross was at a speakerphone in the solicitor general's conference room.

Blatt made the only oblique reference to the coronavirus pandemic that caused the change to the court's routine. The justices canceled arguments scheduled for March and April and will hold teleconference hearings on some of the cases this week and next.

Referencing how consumers use websites, Blatt told the justices that she had been searching for toilet paper online and using Web-based food delivery services as well.

Supreme Court oral arguments bear little resemblance to courtroom dramas as seen on television. The rhetoric is legalistic, relying heavily on the court's precedents. Those who have not studied the case beforehand often have trouble following the conversation.

Monday's argument ran about 15 minutes longer than the usual hour, and at one point, Roberts told Ross to "take a minute to wrap up," something he normally would not do.

Roberts was ringmaster, calling on his colleagues when it was their time for questions, and cutting off the lawyers when their answers went too long.

The Patent and Trademark Office was appealing a lower court decision that said it was wrong not to allow Booking.com to register its trademark. The office said a generic word such as "booking" does not qualify by simply adding ".com."

Roberts questioned Ross about whether the government was relying too heavily on a court precedent written in the 1880s, and perhaps superseded by changes Congress has made in the law.

"It seems to me that, in trying to decide what Congress had in mind, it makes more sense to follow the language that Congress chose in the statute rather than a 130-year-old case of ours," Roberts said.

Justice Elena Kagan said the government's bright-line rule might go "too far." Thomas wondered why Booking.com's request was different than getting a trademark for a vanity telephone number, such as "1-800-plumbing."

Others said the company's trademark registration request would allow it to monopolize a common term. Breyer expressed such a concern, as did Justice Samuel Alito.

"You are seeking a degree of monopoly power that nobody could have had prior to the internet age," Alito told Blatt.

The case is U.S. Patent and Trademark Office v. Booking.com.

Like most Supreme Court cases, the trademark dispute did not present the court with the kind of issue that displays its ideological split.

That may change later this week, when the justices again consider the contraceptive requirement in the Affordable Care Act. Next week, it will consider President Donald Trump's battle to keep his financial records from being turned over to congressional committees and a New York prosecutor.

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