For the first time in its 230-year history, the Supreme Court heard arguments by telephone with a live audio broadcast, an unforeseen if inevitable accommodation to the coronavirus pandemic.
Monday's dispute, a good test case for the new format, asked whether Booking.com can obtain a trademark for its name. Chief Justice John Roberts played the traffic cop, giving each justice a few minutes to question lawyers on both sides in order of seniority. He kept an uncharacteristically tight grip on the proceedings, sometimes interrupting both advocates and justices to keep the queue moving smoothly.
The teleconference format was somewhat halting and featured a couple of technical difficulties, but was smooth on balance. Justice Sonia Sotomayor momentarily had trouble piping in, while Justice Stephen Breyer sounded muffled at the beginning of a colloquy with one of the advocates. The proceedings ran about 15 minutes past the allotted hour, a rare occurrence at a court that keeps strictly to time limits.
Retired justice David Souter famously told a House subcommittee in 1996 that cameras would roll into the Supreme Court "over my dead body." Current justices seem no less hostile. Speaking to a congressional panel in 2019, Justices Samuel Alito and Elena Kagan said live broadcasts of Supreme Court proceedings might lead the justices to self-censor for fear their sometimes fanciful questions will be misunderstood or taken out of context. The late justice Antonin Scalia predicted that a live broadcast would damage the Court's prestige—the Court has always drawn some degree of power from its mystique—since news programs might only carry short clips that are not genuinely representative of the Court's work. As such, the long-term viability of the live audio experiment will turn in part on responsible editorial choices by television news networks.
Though the Court's arguments seldom lack for attention, the justices have never allowed cameras or an audio feed into the courtroom. Those wishing for an account of a day's events generally must wait for press reports. An intrepid few might read the lengthy transcripts the Court hands down several hours after an argument concludes. A recording of each argument is made available on the Friday afternoon following a given case.
The courtroom seats approximately 450 individuals. Once seats for lawyers, guests, and reporters are reserved, there are only about 50 seats left for members of the general public. Before Monday's historic broadcast, those wishing to watch a live Supreme Court argument had to wait outside the Court for coveted argument tickets. For major cases, lines often form days in advance.
In many respects Monday's teleconference was a typical argument. Marshal Pamela Talkin cried the Court in the usual fashion, while the justices largely kept to form. Kagan asked a characteristic series of pointed questions in rapid succession, while Breyer posed lengthy, open-ended questions, including one that raised four discrete issues.
One member of the Court did break with usual practice. Justice Clarence Thomas, who is usually silent on the bench, asked several questions of each side, making Monday the first time he has spoken during arguments since March 2019. Thomas does not usually ask questions as a matter of courtesy, believing that advocates should be given leeway to present their cases at length.
Fix the Court, a nonpartisan judicial watchdog that has long advocated for public access to the High Court's proceedings, said Monday's teleconference proved live broadcasts do not impede the justices' work.
"The days of restricting the court's proceedings to VIPs, the press, and a few dozen members of the public are over," said executive director Gabe Roth. "Now that we know with certainty that live audio does not impair its functioning, there's no reason for the Court to return to its outmoded policy of week's-end audio releases once we're past the pandemic."
The question in Monday's case involved a technical matter of trademark law. Generic terms, such as "booking," cannot be trademarked. The question is whether combining a generic term with the top-level domain name ".com" creates a registrable mark.
The Booking.com case was argued by experienced advocates, perhaps a factor in the Court's decision to lead with it. Lisa Blatt of Williams & Connolly, who has presented over 30 cases before the High Court, represented the company, while Justice Department lawyer Erica Ross appeared for the Patent and Trademark Office.
Thomas noted trademarks are available for 1-800 vanity numbers like 1-800-Plumbing. What's the difference, he asked, between a phone number and a domain name?
The Trump administration is opposing the company. The Supreme Court held in a 19th century case that trademarks are not available where an applicant combines a generic term with a suffix like "Inc." That same rule should control here, administration lawyers told the justices.
"The addition of '.com' does not create a protectable mark, because it conveys only that respondent 'operates a commercial website via the internet,'" government lawyers wrote in court documents. "Thus, just as no company could register a trademark in 'Booking Inc.,' respondent should not be permitted to register a trademark in 'Booking.com.'"
The company counters that the 19th century ruling was superseded by a 1946 law called the Lanham Act. Blatt noted that the government has registered many marks combining a generic term with the ".com" suffix. Justice Ruth Bader Ginsburg pressed the administration on this point.
"How many marks, already registered marks, would be subject to cancellation?" Ginsburg asked Ross. "I take it there are dozens of '.coms' that have been registered."
The government fears granting trademarks to applicants like Booking.com will let the company crowd out competitors such as ebooking.com. Some members of the Court seemed sympathetic to that concern.
"You are seeking a degree of monopoly power that nobody could have had prior to the Internet age," Alito told Blatt.
Other cases set for argument over the special teleconference sitting include a challenge to the administration's conscience exemptions to the Affordable Care Act's contraception mandate and disputes over subpoenas for the president's financial records.
The case is No. 19-46 U.S. Patent and Trademark Office v. Booking.com.