Jurisprudence

The Supreme Court Just Proved Its Secretive Rules Are Silly and Counterproductive

The justices proved they can do good law in public. We’ll soon learn whether they dare do bad law right before our eyes.

A photo illustration depicting Chief Justice John Roberts speaking during oral arguments before the Supreme Court as it is livestreamed on a laptop.
Drew Angerer/Getty Images

On Monday, the Supreme Court finally discovered 20th century technology. For the first time ever, the court held real-time oral arguments over the phone on a livestream, allowing the public to listen in, unfiltered, to the world in which law is made. It was surreal and a bit awkward to hear the justices adapt in real time: Yes, there were glitches, including a few dead seconds when Justice Sonia Sotomayor apparently forgot to unmute herself. The normal free-for-all of questions piled atop questions was replaced with rigidly structured colloquies in a preordained order. But on the whole, the grand experiment was a success—a step forward for transparency that the justices may find difficult to reverse after the pandemic subsides.

If SCOTUS had its druthers, it would probably have kept its oral arguments sealed off from the world forever, rejecting cameras in the courtroom even after Google someday implants webcams into every human retina. This year, however, the coronavirus pandemic forced the court’s hand by first compelling the cancellation of arguments in March and April. Those sessions included several critical cases—including disputes over Donald Trump’s financial records, Obamacare’s contraception mandate, and the Electoral College. Then, after a few weeks of silence, the justices rescheduled 10 of those cases for a May session to be held over the phone and livestreamed to the public. (Unlike many lower court judges, the camera-shy justices refused to use Zoom.) They picked USPTO v. Booking.com B.V. for Monday morning’s test run, likely because it’s a low-profile case argued by Lisa Blatt, a veteran of the Supreme Court bar.

Most people who tuned in to Booking.com were probably more interested in the novelty of livestreamed arguments than the legal question at issue (a trademark kerfuffle). Under ordinary circumstances, the justices hold oral arguments in a closed courtroom. You can’t bring in a cellphone, let alone a laptop. Only 50 seats are reserved for members of the public, who must stand in line for hours, sometimes days, to get one of these coveted spots. (Historically, rich people just hire line standers.) During arguments, attorneys get two uninterrupted minutes to introduce their position (a recent innovation), and then the justices ask freewheeling questions in no particular order, often interrupting the advocates and each other, in order to pursue a line of inquiry. The court issues transcripts an hour or two after arguments conclude, then releases audio of the arguments on Friday afternoon, after the justices wrap up their conference.

COVID-19 scrambled this whole protocol, since the justices can’t safely meet in person or allow the public into the Supreme Court building. (The lectern where attorneys stand to argue is so close to the bench that infectious droplets could easily traverse the short distance.) As a result, the justices called in to a teleconference line from their homes or offices and asked questions one at a time. Chief Justice John Roberts began, then called on his colleagues in order of seniority. Everyone expected the famously silent Justice Clarence Thomas to skip his turn—but he was fully engaged, grilling both attorneys with sharp questions and follow-up questions.

This format fundamentally altered the dynamic of oral arguments. Typically, argument sessions are understood as an oblique conversation between the justices, who address each other indirectly, through the attorneys before them. (Once, when Justices Stephen Breyer and Antonin Scalia cut out the middleman and began arguing with each other, then–Chief Justice William Rehnquist broke it up by reminding them, “Maybe we should go through counsel.”) The theatrical aspect of the formal courtroom, with its red curtains and hushed gallery, contributes to a general sense that the advocates are essentially the props, as the justices work out points of possible agreement and differences between themselves.

Ordinarily, then, Roberts might ask a question, then Breyer might interrupt the attorney’s response with a follow-up, and then Sotomayor might redirect the discussion by posing a hypothetical based on Roberts’ original query. That style has its drawbacks: Several male justices have a bad habit of disproportionately interrupting the female justices, which doesn’t happen when each justice is allotted equal time. But the gabfest can help tease out nuances or holes in an attorneys’ argument, as when the liberal justices destroy the pretexts justifying abortion restrictions.

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. It’s fascinating to watch the justices’ body language on the bench, to see how they subtly indicate their eagerness to jump in or their annoyance that a colleague moved the conversation past their question. Justice Elena Kagan, for instance, regularly glances around to anticipate an upcoming lull that she can seize upon to start an interrogation. With those visual cues gone, the arguments were messier. The justices stopped stepping on each other’s questions, yes, but they started focusing more on their own discrete interests, preventing the emergence of a coherent throughline that might help them craft an opinion reflecting the interests of the group.

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 (like booking). 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. Could the company register “1-800-booking” as a trademark? Thomas wondered. Could it trademark its physical address? Breyer asked. Why do the Wig Company and the Container Store get trademarks if wigs and containers 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. It likely also means that there should be video access as well. But perhaps the real lesson of Monday’s televised session is that the court is actually quite sensitive to public need for government in perilous times. And a public that may have tuned in to C-SPAN for a fairly arcane trademark dispute cannot help but have been reassured that at least one of the three branches of the federal government appears to be taking its responsibilities seriously, and doing so soberly and thoughtfully. In one sense, the Article III courts seem to make up the one branch that is so acutely sensitive to public approbation that they have risen to the task of working through the pandemic, rather than just profiting off it.

As oral arguments go, Booking.com was an object lesson in the fact that some of the court’s long-cherished preferences and rules are archaic and self-protective and probably silly. Nobody disgraced themselves, and the questioning was brisk, to the point, and substantial. In the coming days, the court will wade into areas in which most sane people fear to tread, including Donald Trump’s financial records and the fundamental absurdity of the Electoral College system. Doing so publicly, openly, and in a timely manner will only redound to the benefit of a court that has always been too secretive for its own good. Doing so in brazen, polemical, and political ways will be doubly dangerous. The court has now shown that it can do good law in public. We’re going to learn very soon whether it dares do bad law right before our eyes.