I wrote earlier about two interesting cases for which oral arguments were heard before the US Supreme Court this week. One was heard on Monday and concerned a suit brought by the company POM Wonderful against Coca-Cola and the other was brought by the broadcast TV station ABC against Aereo and was heard on Tuesday.
In his reading of the oral arguments, in the first case, Ronald Mann says that almost all the justices seemed skeptical of Coca-Cola’s argument that as long as the FDA did not raise any objections, they could label as ‘Pomegranate Blueberry’ a juice drink that consisted of 99% apple and grape juice, 0.3% pomegranate juice, and 0.2% blueberry juice. Their argument was upheld in the lowers courts but it seemed to run into deep skepticism yesterday. Although it is always dangerous to predict a verdict based on oral arguments since justices sometimes take Devil’s Advocate stances, Mann thinks that this is one case where it is possible to do so and he thinks that there could even be a unanimous verdict reversing the Appeals Court decision. The transcript is here.
The Aereo case is trickier to gauge since some of the justices seem unsure about modern technology. For example, justice Antonin Scalia did not seem to be aware that the channel HBO was not broadcast over the air and could not be obtained free and thus was somewhat irrelevant to this case, while in order to make a point justice Stephen Breyer asked what a verdict in this case implied for a store that sold phonograph records. Lyle Denniston gives his analysis of the oral arguments and the transcript can be seen here.
Of course, all the justices have young law clerks working for them who will be able to tutor them on how all the varieties of modern communication services work so I would expect that Scalia and others will be better informed during their deliberations. But I was surprised that they did not seem to have done better preparation before the oral hearings so that they could have focused their questioning more closely on the key issues.