U.S. Supreme Court Chief Justice John Roberts Jr./Photo: Diego M. Radzinschi/ALM

The U.S. Supreme Court's historic telephonic arguments moved swiftly and orderly Monday, with the chief justice serving two roles as timekeeper and traffic cop and the lawyers and justices engaging in a lively back-and-forth that was devoid of any lasting technical glitches and long pauses.

The argument featured references to the COVID-19 hunt for toilet paper and groceries, and even included rare inquiries from Justice Clarence Thomas, who does not regularly ask questions at oral argument.

The justices chose a relatively straightforward trademark registration challenge as the first case in their historic break with argument tradition, a move forced by the virus pandemic. By the end of 77 minutes, just 17 minutes over the allotted time, "the sky didn't fall," one court watcher remarked.

"It has been approximately 45 minutes. Can anyone say the reputation of the #SCOTUS has been harmed? There is no *good* reason for the lack of transparency that OUR court embraces on a daily basis," Jessica Levinson of Loyola Law School Los Angeles said on Twitter.

Reactions to the arguments generally were favorable, although some court watchers lamented the usually quick give-and-take between justices and advocates, and between the justices themselves. The more orderly process—where the justices got to ask questions in order by seniority—was the result of Chief Justice John Roberts' attempt to stick to the traditional hourlong argument. A recent hearing at the U.S. Court of Appeals for the D.C. Circuit dragged on for hours.

The justices participated remotely either at home or in chambers at the court. Roberts directed the arguments from the Supreme Court building, which has remained closed to the public for weeks amid the pandemic.

The justices have scheduled 10 cases for argument on Monday, Tuesday and Wednesday of this week and next. Those cases are among 20 cases in which the court postponed oral arguments for their March and April sessions. The remaining cases will likely be argued in the new term in October.

The court's sessions typically begin with a buzzer sounding in the courtroom at 9:55 a.m., alerting the public audience to the 10 a.m. start. Instead of the buzzer, a voice came over the phone line announcing, "The time is now 9:55 a.m." The court's marshal, Pamela Talkin, called the court to order with the traditional "Oyez, Oyez, Oyez" cry but she omitted the "admonished to draw near" part of the cry. There was a gavel bang.

Without skipping a beat, Roberts, promptly at 10 a.m., announced the case, U.S. Patent and Trademark Office v. Booking.com. He did not acknowledge the historic moment, where the court was hearing a case by phone and allowing real-time public access to the audio. Traditionally, the court releases audio of its hearings several days after an argument.

Erica Ross, an assistant to the U.S. solicitor general representing the U.S. Patent and Trademark Office, was the first lawyer to argue. Under a recent new rule, advocates have two uninterrupted minutes at the beginning of their arguments. At the end of Ross' time, Roberts asked the first question and then proceeded to call on the justices in order of seniority roughly every three minutes.

Because he is the senior associate justice, Thomas was called on next, and he broke his own usual argument silence by posing a key question to Ross that several justices later followed up on. Thomas had not asked a question since March 2019, and that question was his first in three years.

"This suggests Justice Thomas doesn't ask questions for the reasons he states—he doesn't like interrupting advocates," Adam Shniderman, a former college professor and now a University of Michigan Law School 3L, said. "When not 'interrupting' the advocate—because it was preordained how this would go—he was perfectly willing to ask multiple q's."

Morrison & Foerster partner Joseph Palmore wrote: "This is a good example of how much Justice Thomas could contribute if he participated in argument more often. The other Justices are keying off his questions."

Lisa Blatt speaking at a Legal Times Supreme Court event in 2011. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL

During the argument, Ross' opponent, Williams & Connolly partner Lisa Blatt, counsel to Booking.com, injected the first-ever reference to COVID-19 in a Supreme Court argument when she was explaining the trademark registrations of online services. "I have searched every grocerystore.com looking for toilet paper. I have now started looking at every hardwarestore.com. I am using fooddelivery.com for all of my takeouts these days," she said.

Justice Neil Gorsuch gently chided Blatt for her response to his question in which he asked her about an amicus brief by Harvard Law intellectual property scholar Rebecca Tushnet. Blatt, in her well-seasoned direct style—she has argued more cases than any female—told Gorsuch: "So you've read the Tushnet brief, but you haven't read our expert apparently." Gorsuch replied, "That's not fair. C'mon now."

There were only a handful of long pauses during the arguments. Roberts had to call on Justice Sonia Sotomayor twice at the beginning of her turn. Sotomayor responded: "I'm sorry, chief."

"I did a SCOTUS moot at Georgetown last week and I inadvertently played the Justice Sotomayor role—twice forgetting to [un]mute myself before starting to ask a question. Seemed inevitable that this would happen in the real thing," Gupta Wessler partner Deepak Gupta said on Twitter.

When Justice Stephen Breyer began one of his questions, his voice was noticeably fuzzy and echoing, an apparent microphone problem that also was quickly fixed. Ross seemed to have a muted phone moment when Roberts called on her for her one-minute rebuttal time. "Thank you, chief justice, sorry about that," said Ross, participating in the argument from the U.S. Justice Department's headquarters in Washington.

Lawyers and advocates—and even one judge—expressed hope the Supreme Court would embrace live access to audio when the pandemic is 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," Gabe Roth of Fix the Court said after the arguments.

West Virginia Supreme Court of Appeals Chief Justice Beth Walker tweeted: "Congratulations, SCOTUS, on broadcasting the audio of oral arguments live today. The Supreme Court of Appeals of West Virginia has been doing it since the late 1980s."