Supreme Court sails through first online oral argument

Roberts attempts to keep everything business as usual

Tourists take photos on the steps of the U.S. Supreme Court on Thursday, March 12.  (Bill Clark/CQ Roll Call)
Tourists take photos on the steps of the U.S. Supreme Court on Thursday, March 12. (Bill Clark/CQ Roll Call)
Posted May 4, 2020 at 12:57pm

The Supreme Court might have made history Monday with its first live internet broadcast of oral arguments, but Chief Justice John G. Roberts Jr. wasn’t going to make a note of it.

Roberts, speaking via telephone as would all the justices and lawyers, simply read the case number and name and then invited Erica Ross, the attorney arguing for the U.S. Patent and Trademark Office, to start: “Ms. Ross?”

With that, the Supreme Court got right down to business in the internet age thanks to the ongoing COVID-19 outbreak — first steps aired by C-SPAN and others without any major stumbles — during a case about trademark protections for online companies.

The novelty drew live commentary from court watchers on social media, which got a boost with rare questions from Justice Clarence Thomas, unintentional moments of silence from Justice Sonia Sotomayor and a technical glitch that made Justice Stephen G. Breyer hard to understand for a few seconds.

Thomas asked questions at the oral argument for just the third time in a decade, court watchers said, probably thanks to a format that gave each justice a chance to speak to the lawyers without having to interrupt or compete with the other justices.

Carrie Severino, a former Thomas clerk, said that he has frequently complained about how oral arguments are chaotic and disrespectful to the advocates who are interrupted.

“Many have described the quarantine as an introvert’s dream. Apparently that applies to the Supreme Court as well,” Severino said. “Justice Thomas, its most famous introvert, seems to be thriving under the new argument system.”

Thomas got to ask questions second because of his seniority, and several justices after him referred back to his questions.

“This is a good example of how much Justice Thomas could contribute if he participated in argument more often,” Joseph Palmore, an appellate lawyer at Morrison & Foerster who has argued 12 times before the Supreme Court, tweeted. “The other Justices are keying off his questions.”

That doesn’t mean Roberts let the attorneys drone on over the phone. Each justice appeared to have an allotted time for questions, and Roberts would cut off the lawyer, sometimes mid-answer, with a “thank you, counsel.” If a justice finished a question right at the end of the time, Roberts said, “Briefly, Ms. Ross.”

When Sotomayor had her first chance to ask a question, there were several moments of silence on the line as if she had forgotten to take her phone off of mute. When she cuts in during in-person oral arguments to challenge a lawyer’s position, she usually starts with an “I’m sorry.”

This time, when her voice broke the silence, she started with, “I’m sorry, chief.” But the questioning rolled on, with Breyer offering a cheery “good morning” greeting when he first spoke. Kagan did the same, and later so did Justice Neil M. Gorsuch, who had a slight whir of a motor in the background during his first questions.

“Passing on an unsolicited training tip to the Justices: Don't say 'Good morning' and then pause,” Ross Guberman, a legal writing teacher who works with judges and lawyers, tweeted. “It will always be as awkward as it was today.”

Breyer, in his second attempt at questions, started out with heavy clipping on his voice, almost like a blown out microphone or speaker. The sound was fixed in a few seconds.

Otherwise, the arguments stayed on track. Roberts ended the argument as tersely as he began: “Thank you counsel, the case is submitted.”

The Supreme Court typically decides all cases for the term by the end of June, but the delayed oral arguments because of the outbreak might change that.

“Other than the Chief Justice cutting everyone off every 3 minutes (versus the Justices cutting each other off in person), this is pretty darn typical,” University of Texas law professor Steve Vladeck tweeted. “It's not a circus — which is why live-streaming shouldn't be controversial.”

And Gabe Roth, the executive director of the nonpartisan group Fix the Court, which advocates for accountability and transparency, said it went swimmingly.

Tens of thousands of Americans finally had the opportunity to listen to the country’s top court weigh in on a case “live and unfiltered, without having to stand in line for hours, if not days, outside the courtroom, and alternatively, for those outside of Washington, without having to wait until the end of the week to hear the justices’ voices,” the group’s news release said.

“Remind me why they haven’t been doing this all along?” Roth said.