Supreme Court Justice Clarence Thomas surprised many court watchers and legal experts on Monday — but it wasn’t what he said that stunned court observers.
It’s the fact that Thomas said anything at all.
The court’s only Southerner and African-American, Thomas has historically been one of the quietest judges in Supreme Court history. He broke his silence Monday to ask a question in a trademark case — surprising those listening in. The Supreme Court is hearing arguments remotely, hearing a case on whether Booking.com can legally trademark their company name or if it’s too generic.
“Could Booking acquire an 800 number that’s a vanity number, 1-800-booking for example, that is similar to 1-800-plumbing, which is a registered mark?” Thomas asked to the U.S. government’s lawyer, Erica Ross.
“That could be true, but I’d like you to compare this to Goodyear,” Thomas said, about a prior Supreme Court ruling. “In Goodyear, you had a generic term, but you also had an added term, such as company or inc, which any company could use. With Booking here there could only be one domain address dot com, so this would seem to be more analogous to the 1-800 numbers which are also individualized.”
The last time Thomas asked a question was in March 2019, in the case Flowers vs. Mississippi involving the death row appeal of Curtis Flowers, who was tried six different times for the 1996 murders of four people in a furniture store.
Flowers conviction was overturned by a vote of 7-2, with Thomas and Supreme Court Justice Neil Gorsuch dissenting.
Prior, Thomas asked a question during a trial in 2016. That was the first question he’d asked during a hearing in over a decade.
Whether travel website Booking.com can legally trademark its name was the high court’s first foray into remote arguments. The lawyers on both sides were well known to the justices and experienced in arguing before the Supreme Court.
It took a worldwide pandemic for the Supreme Court to agree to hear arguments over the telephone with audio available live for the first time.
Case filings were made available online just two years ago, decades after other courts. Other forays into technology, including posting opinions online, have not always gone smoothly.
The Supreme Court called the attorneys at 9:30 a.m. for arguments beginning at 10, and the justices will ask questions in order of seniority after Chief Justice John Roberts.
The Horn editorial team and The Associated Press contributed to this article