Legal Docket - Birth control and an untimely toilet flush

MARY REICHARD, HOST: It’s Monday morning. Welcome to a new week for The World and Everything in It. Today is the 11th of May, 2020. Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Last week, a first at the U.S. Supreme Court: Oral arguments over the phone. It got the job done, with very few problems, and only one big one, about which more in a moment. 

Four cases last week, six this week. 

Today, we’ll have the first case heard Monday, and then another case from Wednesday.

REICHARD: Yes, things started as usual.

AUDIO: Oyez, Oyez, Oyez! God save the United States and this honorable court. [Gavel]

Supreme Court Marshall Pamela Talkin didn’t miss a beat. She was on the phone, too, and we heard her issue the traditional call to order.

Then the chief justice announced the case.

ROBERTS: We’ll hear argument this morning in case 1946, the United States Patent and Trademark Office versus Booking.com.

EICHER: And away they went! After the first lawyer’s opening two minutes, Chief Justice Roberts asked his questions. Then he called the justices for their questions—in order of seniority. And when time was up? It was up!

ROSS: The point here…

ROBERTS: Thank you, thank you, counsel. Uh, Justice Thomas?

THOMAS: Uh, yes, Ms. Ross, a couple of questions.

REICHARD: That Justice Clarence Thomas even asked questions was news. He once went a whole decade without asking a question! So it was nice to hear his voice. 

Then next in seniority:

ROBERTS: Thank you, counsel, Justice Ginsburg?

GINSBURG: Two questions.  First question…

And so on in that manner. Once in a while, there’d be some delay. Justice Sotomayor had trouble with the unmute button. Or there’d be distortion for some reason. Justice Breyer:

BREYER: It’s a combination of four things…

But really nothing outside of what you’d expect in a teleconference—well, except for an oral argument on Wednesday. A distinct, easily identifiable, sound in background came through while one of the lawyers was talking:

MARTINEZ: [toilet flush sound…] And what the FCC has said when the subject matter … [flushing sound]

EICHER: (laughs) Oh, man! I don’t know how I feel about that. I love the decorum of the Supreme Court and I have to wonder whether this kind of thing that will say to the chief justice, famously not open to technology in the courtroom, to say I told you so and once the crisis is over, it’s back to the dark ages for technology.

But I also loved that the chairman of the FCC weighed in on social media. I’ll relate it to you with what I believe is the requisite sarcasm level: To be clear, said chairman Ajit Pai, the FCC does not construe the flushing of a toilet to reflect a substantive judgment of the Supreme Court, or of any Justice thereof, regarding an agency determination.

REICHARD: Touché, Mr. Chairman! 

Well, back to the first case. 

Maybe you’ve made reservations using a website called “Booking.com.” That company sought a trademark for its name. But the U.S. Patent and Trademark Office turned it down, because you can’t trademark generic terms. 

“Booking” is generic, and “dot com” is generic. But if you put them together as “Booking-dot-com,” does it change anything?

Lawyer for the Trademark Office, Erica Ross, says no. Supreme Court precedent from 1888 in a case called Goodyear tends to back her up.

ROSS: The point of this case, I think what really matters is the ability to block out competitors like ebooking.com and hotelbooking.com. And I think that’s exactly the type of anti-competitive concern that this court expressed in Goodyear…

Maybe so, but Justice Breyer asked the same question several justices asked in different ways:

BREYER: You can have a trademark that’s an address. 1418 35th street or something. You can have a trademark that’s a telephone number. So why can’t you have a trademark that is a dot-com?

Ross answered, just let the Patent Office decide as it always has: decide what’s generic versus what’s descriptive. The Goodyear precedent wouldn’t permit a brick-and-mortar business to trademark the name “Booking Company.” 

So why should the internet be any different? 

But Booking.com’s lawyer Lisa Blatt argued the Goodyear case is now passé. A law passed in the 1940s called the Lanham Act governs trademark law. And it says the test for whether a word can be trademarked is the “primary significance test.” In other words,  how consumers think about a certain term.   

Justice Samuel Alito saw a problem with both sides.

ALITO: What do you think I should do if I think that Goodyear is a case from a different era and doesn’t control here? But also think that the Lanham Act similarly was enacted in a different era, namely, in the pre-internet era. How can a rule that makes sense in the internet age be reconciled with the language of the Lanham Act?

The justices searched for some way to balance competing interests: 

Such as, how to avoid a monopoly over certain otherwise generic words. And weighing that against the reality of internet business and how consumers view domain names.  

The justices also worried about inviting loads of litigation.

The way forward is not at all obvious to me. The justices have many threads to consider.

Now, my final case today is one we know well, because it’s been here before:

The fight over Obamacare’s mandate that employers provide contraceptive coverage for employees in their insurance plans.

A brief history, for review: The Supreme Court in 2014 decided that a closely held for-profit corporation owned by people with sincere religious objections could opt out of that part of the ACA. That’s the Hobby Lobby case. 

Two years later, more battles, as religious nonprofits said the opt-out procedure itself still burdened their religious exercise rights. During that case, Justice Antonin Scalia died, and that left the court only eight justices—and a likely tie vote. So rather than issue a split decision, the court sent the case back with instructions for both sides to try to work out a solution. 

That failed. In 2017, though, the Trump administration expanded the exemption to include many other employers who might want to opt out of providing abortifacient drugs. The states of Pennsylvania and New Jersey sued, and some judges issued nationwide injunctions against the compromise rule, and now here we are at the Supreme Court once again.

In another first for the court, Justice Ruth Bader Ginsburg took part in the oral argument as a justice and as a patient. She was in the hospital during this oral argument and phoned in from her hospital room.

She and the other two female justices were clear where they stood on the question.

GINSBURG: At the end of the day, the government is throwing to the wind the womens’ entitlement to seamless, no cost to them, it is requiring those women to pay for contraceptive services. And if it turns out that there is no other plan that covers them, then they lack coverage. And the only way they can get these contraceptive services is to pay for them out of pocket. Precisely what Congress did not want to happen in the Affordable Care Act.

But lawyer for the Little Sisters Paul Clement pointed out that Obamacare never required birth-control coverage. Congress delegated that decision to the Department of Health and Human Services. And HHS didn’t make contraceptive coverage mandatory. That’s why millions of other employees didn’t have such coverage, even in secular settings. 

Justice Brett Kavanaugh pointed out the strong interests on both sides: religious liberty interests and ensuring womens’ access to preventive services. He addressed lawyer Michael Fischer who argued against the exemptions:

KAVANAUGH: So the question becomes who decides? Who decides how to balance those interests? And the answer is, of course, Congress in the first instance.

And because Congress delegated that authority to HHS, the agency falls under the executive branch. Elections happen, presidents change and the president has discretion to change course.

KAVANAUGH: And then the question is what’s the judicial role? And it seems to me the judicial role is not to put limits on the agency discretion that Congress has not put there.

Ergo, perhaps what’s reasonable in this circumstance is to allow that deference to the executive branch. He had this question for Fischer, again, lawyer arguing against exempting the nuns:

KAVANAUGH: Why isn’t that the way to look at the case, and if we get down to the bottom line of is this reasonable, not maybe everyone’s preferred choice but at least within the bounds of reasonable. Why isn’t this a reasonable way to balance it?

Fischer had several objections to that, including that the “moral exception” standard is too broad and capricious.  For example, an employer could believe women ought not be in the workplace, and use that as the moral objection to avoid providing insurance coverage for abortifacient drugs. 

Chief Justice Roberts asked whether the Little Sisters objected to employees obtaining contraceptive coverage at all, from elsewhere. 

Clement had a ready answer:

CLEMENT: …don’t have any objection if their employees receive those services from some other means. Their objection essentially is to having their plans hijacked and being forced to provide those services through their own plan and plan infrastructure.

Fischer argued despite that, Obamacare’s original rules struck the right balance by letting employers opt out, but still letting women get contraceptive coverage. 

Perhaps Chief Justice Roberts summed up everyone’s frustration when he said this.

ROBERTS: The problem is that neither side in this debate wants the accommodation to work. The one side doesn’t want it to work because they want to say the mandate is required, and the other side doesn’t want it to work because they want to impose the mandate. Is it really the case that there’s no way to resolve those differences?

Let’s hope this time the court makes a decision on the merits. Or even better, Congress does its job and clarifies the issue.

And that’s this week’s Legal Docket.

(AP Photo/Patrick Semansky, File) In this May 3, 2020, file photo, clouds roll over the Supreme Court at dusk on Capitol Hill in Washington. 

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