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Supreme Court Livestreams Oral Argument For 1st Time In History

ARI SHAPIRO, HOST:

The U.S. Supreme Court made history today. The coronavirus lockdown forced the typically cautious court to hear arguments by phone for the first time. They streamed the arguments live so the public could hear them. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Chief Justice John Roberts was at the court as the telephone session began.

(SOUNDBITE OF ARCHIVED RECORDING)

JOHN ROBERTS: We'll hear argument this morning in case 1946.

TOTENBERG: The first and only case heard today involved an arcane trademark question that only a lawyer could love. Booking.com is appealing a U.S. Patent and Trademark Office refusal to grant a trademark to Booking.com. With the justices asking questions in order of seniority, the first big surprise was that Clarence Thomas, who in the past has gone years without asking a question, did ask one - several, in fact - when it came to be his turn. Here he is addressing assistant solicitor general Erica Ross.

(SOUNDBITE OF ARCHIVED RECORDING)

CLARENCE THOMAS: Could Booking acquire an 800 number, for example, that's a vanity number - 1-800-BOOKING, for example?

TOTENBERG: Yes, replied Ross. Justice Stephen Breyer followed up.

(SOUNDBITE OF ARCHIVED RECORDING)

STEPHEN BREYER: Same question - good morning, anyway. You can have a trademark that's a telephone number, so why can't you have a trademark that's a dot-com?

TOTENBERG: Next up to the lectern from her home was lawyer Lisa Blatt. This was her 40th Supreme Court argument, and despite being a veteran, she said later that she was, as usual, sick to her stomach beforehand. Once at the lectern, though, she said it's always a rush of excitement, and this time was special.

LISA BLATT: I loved getting questions from Justice Thomas. I would go to phone for the foreseeable future if I could get Justice Thomas to ask questions. That was wonderful.

TOTENBERG: Indeed, Blatt and Ross seemed to be having a good time. Here's Blatt parrying a question from Justice Samuel Alito.

(SOUNDBITE OF ARCHIVED RECORDING)

SAMUEL ALITO: Your client would not object to the registration of any trademark that simply made a slight variation in Booking.com. That would be fine. All of those companies could register their trademarks.

BLATT: They are because there's a million booking registrations already.

ALITO: Would you please answer the question? Would your...

BLATT: Yes.

ALITO: ...Client object to that?

BLATT: They don't and have not and would not.

TOTENBERG: Not, she added, unless another company ripped off the trademark. That would be theft. So when the argument was over, what was her reaction?

BLATT: After I hung up, I screamed, that was hard, because you're so focused on saying enough to answer it but not saying too much. And you don't have any, like, visual feedback, so it was hard.

TOTENBERG: In the end, she said, the argument felt less like an argument than an oral exam. Tom Goldstein, publisher of SCOTUSblog, had a similar reaction. Goldstein, who's argued 43 cases before the court, said he thought the argument was probably more useful to the public than usual but less useful to the justices. Still, there were no major glitches on this first day. Justice Sotomayor briefly forgot to unmute her phone at one point. Justice Breyer's voice broke up for a second or two. But as Goldstein observes, this was a big change for the court.

TOM GOLDSTEIN: Culturally a change, technologically a change. And it could have been a big embarrassment if it didn't go well, but it went fine. I think they're happy.

MARY LOUISE KELLY, HOST:

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.