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Supreme Court Oral Arguments by Teleconference — A Few Observations

By  David M. Gossett
05.04.20
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In a first, the Supreme Court today heard oral argument via teleconference. The case heard, U.S. Patent & Trademark Office v. Booking.com BV, No. 19-46, involves an interesting question of trademark law — whether by adding ".com" to a generic term, one can trademark the resultant phrase (here "booking.com"). We'll know by summer how the Court rules; the questions at argument suggested that they may rule in favor of trademarkability on the ground that generic terms can be transformed into protected marks by other simple changes, but trying to determine the outcome of a case based the questions asked during a Supreme Court argument is a fraught enterprise. The argument was nonetheless fascinating.

Supreme Court oral arguments are extraordinarily formal and predictable endeavors. A traditional oral argument is precisely one hour long, divided between the advocates for the two sides. The Chief Justice calls the first counsel (for the petitioner) to the podium, and precisely 60 minutes later—after she has argued, respondent's counsel has argued, and petitioner's counsel has presented a brief reply argument—the Chief thanks her and instructs her to sit down. (Occasionally one counsel shares argument time with an amicus, but all counsel for a given side have 30 minutes.) During the argument, counsel will be peppered by questions from the bench—with justices regularly talking over each other and counsel. (By tradition, the more-senior justice gets to talk first if two justices start asking questions at the same time. And woe to the counsel who talks over a justice!)

Change comes to the Court slowly and rarely. There was quite a hullaballoo earlier this year when the Court announced that, in a shift from recent practice, each counsel would be afforded two minutes of uninterrupted time at the start of their argument to present an overview of their case. And in recent years, the Court has bowed a slight bit to technological change and has begun releasing transcripts of oral arguments the same day as the argument, and audio recordings of arguments later in the same week.

Today's argument, though, proceeded quite differently. After each counsel's initial 2-minute uninterrupted introduction, the justices took turns in order of seniority (Chief Justice Roberts going first and Justice Kavanaugh last), with each justice taking three-to-four minutes to ask questions and have them answered. Justices did jump in over counsel at times—especially when an answer was not really responsive to the question. But the justices took their turns, and didn't interrupt each other. (The Chief Justice sometimes cut off the end of counsel's final answers to a justice's question to ask the next justice to proceed.) The Court allowed counsel to take somewhat longer than the normal 30 minutes, with the Chief allowing a little time for each counsel to "sum up" after questioning ended.

News stories have already focused on the fact that Justice Thomas—who famously asks questions at most a couple times a decade—asked questions of, and engaged in lengthy colloquies with, both counsel. Stories may also note that Justice Sotomayor at one point had a problem turning on her mic, and that Justice Breyer's mic was garbled for a few seconds. And I won't be surprised if they mention that Lisa Blatt, arguing for the respondent, managed to get in a reference to our current pandemic when she used searching online for toilet paper delivery in a hypothetical example. But to my mind, there were two really interesting things about the oral argument.

First, I was amazed by how closely the argument in fact resembled a more traditional Supreme Court argument. The counsel were both extremely well prepared, eloquent, answered questions persuasively, and seemed unfazed by the technological challenges of arguing from home. The Justices were deeply engaged and also seemed unfazed by the novel format. And Justice Breyer even got in one of his typical 4-part hypotheticals.

Second, to my ear the main difference was that counsel had more time to respond to questions without interruption, and that as a result their answers were more complete and persuasive. The Justices' questions were answered, if perhaps in a slightly different order than normal. Overall, the argument was, if anything, more effective than arguments in the Court's grand chamber.

I can't imagine that the Court will continue holding arguments telephonically any longer than it needs to. In the meantime, as citizens, we should be reassured that the Court has demonstrated that it will continue to get its work done during COVID-19. But the interesting question is whether they will adopt any form of the serial questioning they followed today when they return to First Street.

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