Clarence Thomas was unusually chatty on the historic call.
Timed telephonic arguments transformed this group debate into a series of brief, intense, somewhat disjointed exchanges, largely conducted between the advocates and individual justices. Roberts had to play traffic cop much more than usual, cutting off attorneys when they’d run out of time with each justice. The other members of the court seemed unsure whether they should build off each other’s questions or swerve in a different direction.
On the other hand, it’s possible that this format will stop the court from exploring the full range of issues in a case. Because of seniority, Roberts and Thomas go first each time, and they get to frame the arguments by asking questions that may influence the rest of the conversation. The more junior justices can veer away from that framing, but the attorney may linger on it anyway.
All that said, Monday’s arguments were about as smooth as could be expected—and they were surprisingly funny. The case revolves around Booking.com’s efforts to trademark its name, which the government opposes. Federal law prohibits trademarks for generic terms . Booking.com argues it deserves a trademark because it added “.com” to a generic term. That claim led the justices in an amusing, almost existential debate.
are generic terms? The government thinks Crab House is generic, Blatt noted, but “Crab House is not a little house where crabs live. They’re actually dead and you eat them.” Should that trademark be canceled? How about Waffle House’s? While arguments got a tad goofy, they were undoubtedly a win for transparency and public access, which means they were also a win for democracy. There is no good rationale for keeping the public away from court proceedings, and the court’s tacit admission this week—that once they are doing arguments telephonically, they might as well broadcast them live—means at minimum that real-time audio should be the norm when the COVID-19 crisis passes.
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