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The World Did Not End

High Court’s first broadcast oral argument begged a question: What took so long?

This blog, written by Gabe Roth, originally appeared on GV’s sister publication B&C.

The U.S. Supreme Court’s first attempt at broadcasting oral argument audio live went swimmingly on May 4. Someone must’ve forgotten to cue the fire and brimstone.

Remind me—why they haven’t been doing this all along?

Concerns over technical glitches proved to be overblown. Justice Sonia Sotomayor was on mute for an extra moment during her first round of questions and Justice Stephen Breyer at one point had a few seconds of raspy audio. But that was it, as tens of thousands of Americans finally had the opportunity modern technology has afforded us for decades to listen to the country’s top jurists weigh in on a case, live and unfiltered. The days of restricting the court’s proceedings to VIPs, the press and a few dozen members of the public are over.

Now that we know with certainty that live audio does not impair its functioning, there’s no reason for the court to return to its outmoded policy of week’s-end audio releases once we’re past the pandemic.

PATENT OFFICE LED OFF

After Chief Justice Roberts called the first case, Justice Department attorney Erica Ross, representing the U.S. Patent and Trademark Office in PTO v. Booking.com, began the historic arguments by citing a 2nd U.S. Circuit Court of Appeals patent opinion by Judge Henry Friendly—for whom Roberts clerked—with two minutes, 21 seconds of uninterrupted time before Roberts broke in with a question about the trademark statute. After all nine justices asked questions, Lisa Blatt, arguing for Booking.com and who was speaking from a lectern atop her dining room table, The Washington Post reported, kicked her turn off by discussing the situations under which generic words may be trademarked. Roberts broke in after two minutes, 18 seconds.

Ross and Blatt—skilled SCOTUS advocates both—parried the queries with a style both conversational and intellectual that made it clear why this argument was chosen to be the first one ever live-streamed. Even Justice Clarence Thomas, who’d previously only asked questions in two oral arguments since 2006, asked questions of both attorneys. During the 77-minute exercise, Justice Elana Kagan asked the most queries with six, followed by Roberts, Neil Gorsuch and Ruth Bader Ginsburg with five apiece. No justice asked fewer than two questions.

One could make the argument that the typically boisterous bench was more subdued than usual, given Roberts’s role as traffic cop. Our research indicates that the public would see that as but a small concession to make given the overwhelming support for real-time streaming.

A link to an audio file of the argument is expected to be posted on SupremeCourt.gov shortly, which makes this not only the first live argument but also the 28th for which an audio recording was provided to the public on an argument day.

To our disappointment, though, Roberts went right into argument after the marshal’s cry, whereas courts that have offered expanded broadcast access have chosen to explain to those listening live what they were about to hear.

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