By Jimmy Hoover

Law360 (May 4, 2020, 1:10 PM EDT) -- Justice Clarence Thomas asked his first question in over a year at the U.S. Supreme Court's first-ever teleconference oral argument Monday morning, taking advantage of a new format where the justices speak in order of seniority.

Justice Thomas broke his perennial silence in the case USPTO v. Booking.com, asking questions of the attorneys from each side. Due to the pandemic, the trademark case was the first in the Supreme Court's 230-year history to be argued via telephone, and also the first to be broadcast live to the general public.

The unprecedented hearing went relatively smoothly. The court marshal gaveled-in the session with the traditional cry of "Oyez, oyez, oyez," and, other than the brief moments when Justice Sonia Sotomayor appeared to be on mute and Justice Stephen Breyer's microphone was scratchy, the teleconference was free of technical glitches.

The remote access to the arguments via C-SPAN, CBS and other broadcasters was a delight to court watchers, who would ordinarily have to wait in line to land a spot in the Supreme Court's limited public gallery. Instead, attorneys, journalists and observers live-tweeted throughout the teleconference, expressing collective shock when Justice Thomas' voice crackled over the line.

"Remind me why they haven't been doing this all along?" asked Gabe Roth, executive director of the judicial watchdog group Fix The Court, who has long advocated for transparency measures like livestreaming.

Unlike the court's usual free-for-all in open court, the court adopted a new format for the teleconferences in which Chief Justice John Roberts Jr. has the first opportunity to ask questions, followed by the associate justices in order of seniority. The chief justice diligently interrupted the arguing attorneys throughout the hearing to keep the questioning on schedule, though the case still ran about 15 minutes over its allotted hour argument.

As the court's senior associate justice, Justice Thomas seized his opportunity Monday to ask questions of both advocates, who, in a rarity for the male-dominated lectern this term, were both women. The case centers on whether adding ".com" to the end of a generic term can make a brand eligible for trademark registration.

"A couple of questions," Justice Thomas began his questioning of Erica L. Ross, an assistant to the U.S. solicitor general. After Ross' argument, Justice Thomas addressed Williams & Connolly LLP's Lisa Blatt, the attorney representing Booking.com in its fight for trademark registration.

"Thank you, Chief," he said after Justice Roberts acknowledged his turn to speak. "Just getting back to the Chief's question, Ms. Blatt ..."

Justice Thomas last spoke up in a Mississippi death penalty case in March 2019. Before that he hadn't asked a question since 2016, when he broke the silence since his previous question in 2006. Justice Thomas has explained his customary silence by referencing the active questioning by his Supreme Court colleagues, as well as his childhood experience being the only black student in a virtually all-white school and being made fun of for his Geechee dialect.

"I was thinking in standard English but speaking another language so I just started developing the habit of listening," he said in 2000. "And it just got to be — I didn't ask questions in college or law school. I found that I could learn better just listening."

When it comes to Supreme Court arguments, "There's no reason to add to the volume," he added.

Carrie Severino, a former clerk to Justice Thomas who leads the conservative Judicial Crisis Network, said his questions Monday show how he is embracing the new argument format.

"While there are obviously downsides to the teleforum argument process, it has created more structure and prevented the interruptions that Justice Thomas feels are disrespectful to the litigants," she said. "Now, with a more orderly process, the justices can hear from advocates and ask their questions in a way that Justice Thomas apparently thinks is more civilized."

Chief Justice Roberts did not address the novelty of the teleconference Monday, ending with his usual line, "Thank you counsel, the case is submitted." The only reference to the global pandemic that prompted the remote hearings came from Williams & Connolly's Blatt, who drew a connection between the retail toilet paper shortage and trademark law.

"Sometimes people think of generic-word.coms generically. I have searched every grocery-store.com looking for toilet paper," she said. "I have now started looking at every hardware.com. I am using food-delivery.com for all of my takeouts these days. Those are generic usages of a generic-word.com."

The Supreme Court will hear an additional nine arguments before the May teleconference session ends on May 13, including a high-profile showdown over access to President Donald Trump's financial records taking place on May 12.

--Editing by Marygrace Murphy.

Update: This story has been updated with additional information about the hearing.

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