Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, May 4, 2020

A Historic Day for the Supreme Court

Today the Supreme Court heard oral argument via telephone conference for the first time, and historically, live-streamed them for the public. The case, U.S. Patent and Trademark Office v. Booking.com B.V., is the first of ten that have been scheduled for oral argument during the COVID-19 pandemic. The Court had been slow to move to a remote format, even as it had to cancel live oral arguments beginning in March. Finally, in mid-April, the Court announced that some cases would be heard by telephone conference and others postponed.

I listened to the argument today, and on the whole, I think it went smoothly. This was due, in large part, to the Chief Justice actively managing the conversation. The advocates also deserve praise for ably handling the format and questioning from the bench. The conversation flowed without much over-talking, which had been one concern in envisioning telephonic arguments with nine justices. There even were some light moments where the odd state of our world served as a reference point (for example, using the hypothetical of searching for toilet paper on “a grocery dot com”).

The live-stream sound was passable. Before the argument started, I could hear a dog barking and birds chirping. Thankfully, that ended and was not a feature of the entire stream. At the beginning, the sound quality reminded me of radio broadcasts from the 1930s or 40s. The sound had ups and downs through the argument, but with the exception of a few particularly bad moments, once the argument had started in earnest, my annoyance at the poor sound quality receded.

As for specifics of how the Court approached the argument, prior instructions stated the Court would ask question in order of seniority. The stream began with the formal cry to order and announcement of the case, just like live oral arguments. The Chief Justice actively managed the advocates and passed the baton to each justice. Depending on the length of the advocate’s answer, he would either wait until the end of a question or cut off the attorney, saying “Thank you, counsel. Justice ____.” Each justice had a turn asking questions of the advocate. It was certainly more orderly than a typical oral argument; one wonders if the justices found the process as helpful for deliberations as their usual format.

The questioning seemed to go most smoothly when the justices asked a question in a longer narrative form, and then let the advocate answer in a longer form. At one point, Justice Kagan tried to have more of a back and forth conversation with attorney Erica Ross, and that was harder to hear and follow in this format. In a few instances, the Chief Justice called on people who did not begin speaking immediately. Perhaps it took a few moments for them to unmute. Mere seconds later he called on them a second time. It was clear that the Chief was running a tight ship and everyone was expected to be ready when their time came. Despite his management of the argument, the arguments went from 10:00 a.m. to 11:17 a.m., significantly longer than the normally allotted hour.

As for the attorneys, the first advocate was Erica Ross, Assistant to the Solicitor General. The second advocate was Lisa Blatt, representing Bookings.com. Both advocates argued well. They stopped as soon as they heard a justice’s voice. They used pauses and intonation well, which seemed particularly important with only a vocal presentation. Any advocate preparing for an upcoming telephonic oral argument would do well to follow their examples. The Chief Justice cut off answers to some questions pretty quickly, so it’s particularly important to lead with a direct answer to a question.

I think today’s oral argument was successful and a reasonable option when live oral arguments are not feasible. Additionally, for the public, having the opportunity to hear the argument in real-time was exciting and made the Court a little more accessible.

https://lawprofessors.typepad.com/appellate_advocacy/2020/05/a-historic-day-for-the-supreme-court.html

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