Speakers: John Walsh, Felicia Ellsworth, Dr. Kristina Tocce, Mariia Shulha, Michael Connor, Preet Bharara, Eric Lesser, Elizabeth Chan, April Williams, Vanessa Potkin, Thomas Saunders, Daniel Volchok, Eric Olson, Matthew Martens and Seth Waxman.
John Walsh: Welcome to In the Public Interest, a podcast from WilmerHale.
Felicia Ellsworth: Hi, it’s Felicia Ellsworth here, one of the co-hosts of In the Public Interest podcast, joined by my other co-host, John.
Walsh: Hi, I’m John Walsh. I’m the other co-host. We’re here to do a recap of our Season 3. We’re going to look back at some of the highlights from the 12 episodes we did this year.
Ellsworth: It was a busy season, but a fun one. We kicked it off around Christmastime and ended it with the Supreme Court term, so we packed in a lot of content this year.
Walsh: Absolutely. This season was the biggest season yet, and we had a whole range of great episodes we’d like to highlight. So, this season we had several episodes on topics at the forefront of the national conversation. A good example of that is our episode on reproductive rights. In that episode, our partner Kim Parker welcomed Helene Krasnoff of Planned Parenthood back to the podcast alongside Dr. Kristina Tocce to discuss the legal ramifications of the Supreme Court’s Dobbs decision, which overruled Roe v. Wade. This was a follow-up to Season 2’s episode with Helene Krasnoff and Dr. Amna Dermish.
Dr. Kristina Tocce: A lot of people I speak with are stunned when I say that these bans affect every single person of reproductive age in our country. It doesn’t matter if you’re living in a blue or red state. The influx in patients impacts wait times, and that impacts all patients, no matter if they are traveling to access care or if they live right down the street from an abortion-providing center. More people are seeking the same appointments for limited services. The increased wait times also have medical implications because abortion care is time sensitive.
Ellsworth: As you and Kim and Helene noted on that episode, we’re really only beginning to understand the true implications of the Dobbs decision.
Walsh: One of the things that’s happened since the episode, too, is the amount of state legislative action that’s taken place around the country that’s resulted in a bunch of different cases.
Ellsworth: Yeah, I think we’ll have additional episodes on this topic in the seasons to come of In the Public Interest, to be sure.
Walsh: And it’s also clear from the sobering conversation we had that people who work in reproductive healthcare are concerned about what could be coming.
Dr. Tocce: With so many patients needing to travel, any state that currently has abortion access is indirectly or directly taking care of patients around the country and providing healthcare for any individual of reproductive age in our country. And with that in mind, I can’t adequately convey the absolute terror and outrage that the words “federal ban” elicit within me.
Ellsworth: We’re even starting to see some data about this now, about people traveling to different states and the increase in hospital admissions for folks from out of state seeking reproductive services in states where they have greater access to it.
Ellsworth: So, we also had another sobering but important episode involving the Russian war against Ukraine. And for this one, we were lucky enough to be joined by a couple of our colleagues. Right, John?
Walsh: That’s right, Felicia. In this episode, we were joined by Mariia Shulha and Georgia Tzifa, two lawyers in our Brussels office. Mariia is a Ukraine-born and Ukraine-trained lawyer who’s working at WilmerHale. She discussed the impact of the 2022 Russian invasion on her life personally and the impact of Western sanctions on Russia. She spoke eloquently about what it means to be Ukrainian and what we can do to help the Ukrainian people during this really difficult time.
Mariia Shulha: I hope you can feel a current Ukrainian spirit here, but jokes aside, being Ukrainian today means constantly fighting, fighting for the right to exist, fighting for freedom and fighting with your own demons sometimes, too. Being Ukrainian means to live despite grief, destruction, losses and pain. Being Ukrainian means to love: to love your country, your people and your land. Being Ukrainian means to believe: to believe in our victory, in Ukrainian armed forces and in a better future. And there are so many more things that being Ukrainian means, but I won’t be able to express them all. I’d like to say that Ukrainians are fighting for the inherent right to live peacefully in our country in the face of brutal Russian attacks. We are fighting for democracy, human rights and the right to decide the sort of foreign security policy and future we want to have. It’s been hard, but we have proved that nothing is impossible if there is a united effort. We are not invaders. We are at home. Home and the peaceful future of our children are worth fighting for. As Antony Blinken said, if Russia stops fighting, the war ends, and if Ukraine stops fighting, Ukraine ends.
Ellsworth: As those clips just showed, it was very moving to hear about Mariia’s personal experience in Ukraine and leaving Ukraine and the importance of continuing the conversation around Russia and what the international community can continue to do.
Walsh: Well, and it really implicates what the rule of law means in the international system that we have.
Ellsworth: On the sanctions front, we learned a lot about what had not worked in the past in light of Russian aggression, and I think it was a very personal and moving episode, but also very informative.
Walsh: Something that, like our episode on reproductive rights, is likely to be a continuing conversation. Later in the season we were joined by Mike Connor, head of the Army Corps of Engineers’ Civil Works program and a former partner at WilmerHale. In that episode, Mike discussed his role at the Army Corps and the Army Corps’ role in the US government’s response to climate change.
Michael Connor: The biggest reality of climate change, as we see it right now, is what we call “weather whiplash.” It’s these extreme events. For instance, in 2022, just in the continental US, we had six 1-in-1,000-year precipitation events. These have a 0.1% chance of happening on any base in any time frame, and we had six of them last year, which was unprecedented. Then you have extreme aridification that’s happening in the West, with respect to droughts that we haven’t seen in 1,200 years. And then, you have the record storm surges that happened, for instance, on the coast of Florida with respect to Hurricane Ian. Those extreme events, in all of those situations, the Army Corps of Engineers has an immediate role in dealing with those extreme events and an ongoing responsibility to try and prepare for those events in the future.
Ellsworth: It was great to have a chance to revisit with Mike. The Army Corps, of course, is in charge of some critical infrastructure that’s been directly impacted by climate change—think levies, waterways, dams, things that are built to last for decades. And Mike and others at the Corps are working to ensure that that infrastructure can withstand the new extremes that we are seeing as a result of climate change.
Walsh: It’s so interesting that when we interviewed Mike at the beginning of the year, the main concern was drought in the West. But just a few months later, that concern had switched to the possibility of flooding because of the amount of snow that had come down in the Sierra Nevada. It just goes to show how hard a job that is and what an incredible task the Army Corps of Engineers has got.
Ellsworth: A very interesting and timely episode. We also had a few episodes this season where we hosted two current WilmerHale attorneys to discuss their fascinating careers and backgrounds and get a chance to hear their perspectives on real-time historic moments in American politics and jurisprudence.
Walsh: The first of the two was Preet Bharara, who is the former US attorney for the Southern District of New York, currently a partner at WilmerHale, with his own podcast that gets a lot of attention—not quite as much as ours, mind you, but he does get some attention—and in that conversation he discussed his path to leadership in the Department of Justice, his view on the role of lawyers in supporting our constitutional system, and what ultimately it means to do justice.
Preet Bharara: When you’re a prosecutor, your client is not any individual. Obviously, you do work to benefit victims and to make them whole, but you represent your district, you represent the United States of America as a federal prosecutor, and you do things and make arguments only that you think are right and correct. But you also do them in the appropriate way. To be on the side of right and good when you’re a public prosecutor is not about winning, it’s not about the competition, it’s not about securing quote, unquote, victory—it’s about making sure that the right thing happens, and that justice is done. And sometimes that means walking away from a case.
Walsh: Obviously, Preet’s had a front-row seat to some really important moments in recent American legal and political history. He took the opportunity to reflect on lessons he’s learned from being in that crucible, and also to share some advice for the next generation of lawyers.
Bharara: My first piece of advice is to think of going to law school and becoming a lawyer in part to do something in the aid of others, and even if you are in private practice at WilmerHale, we generally—and John and I individually—commit ourselves to pro bono work. Because I think if you have the power and the authority to do the kinds of things you do as a lawyer, I think you have an obligation to give back. That’s point one. Point two is a more pragmatic point—and this is whether you’re going to be a transactional lawyer or a litigator—learn some craft. A lot of people want to become lawyers because they want to go into politics or they want to work on the Hill or they want to do some other such thing. And that’s all great and good, and I worked on the Hill for five years as chief counsel to Senator Schumer. In the early years, practice becoming a lawyer, practice your craft, try to get into court as much as possible.
Ellsworth: It was a great episode. We also spoke with WilmerHale Senior Counsel Eric Lesser. Eric joined the firm by way of the Obama White House after serving several terms in the Massachusetts State Senate as a senator from his hometown and a consultant to the HBO political satire Veep, which is really one of my favorite shows and one that I love to watch and rewatch. Following the debt ceiling crisis earlier this year, Eric joined us to discuss his perspective on the debt ceiling deal, what it portends for the future of congressional negotiations and how our current political reality compares more closely than you might like to think to an episode of Veep.
Eric Lesser: It’s scary because you think about it—and I remember kind of chatting with and working with some of the writers on those Veep episodes—and you used to think, it can’t get any crazier than this. And then the real-life politics is infinitely more insane and wild than Veep ever was.
Walsh: Stay tuned for an entire episode about his work with Veep. Despite Veep, Eric also sounded an optimistic note about the future of American politics.
Lesser: But if you just play out what’s happened in American politics since 1994, 1995—I mean, people thought that that was a bottom in terms of polarization and divisions between the parties, and we are so much further beyond that. I do think that there’s a glimmer of hope in the fact that the actual deal that approved the increase was one of the most bipartisan in recent history, and you had a very mixed vote of Republicans and Democrats that came together to get the debt ceiling passed. So, you always hope that maybe the fever breaks and this coalition emerges of more responsible members of Congress from both the Republican side and the Democratic side that come together to find resolution.
Walsh: Then several of our other episodes this season focused on remarkable individual stories at the center of legal cases that WilmerHale has handled.
Ellsworth: Yeah, we kicked off the season with a very special holiday episode featuring Elizabeth Chan, a client of the firm and a singer and songwriter who exclusively writes and sings holiday music and who has been dubbed the “Queen of Christmas” by the media dating back as far as 2014. In 2021, Mariah Carey’s company, Lotion LLC, applied to register the trademark “Queen of Christmas” for future use on a wide range of products, including music, perfume, sunglasses and even coconut milk. We talked with Elizabeth Chan about the impact that that had.
Elizabeth Chan: I was not only defending my profession—my livelihood—I was protecting my personal life because, you know, I personally love Christmas music.
Walsh: This was a really fun episode and well-timed for the holidays. A lot of great music and a glimpse into a world that most people aren’t familiar with. And while the topic was lighthearted, there was also a serious element to it because it was a very serious career situation for a client.
Chan: For me, before any of this Queen of Christmas stuff happened with Mariah, the Queen of Christmas was always my grandmother because she taught me how important it was to bring people together during the holidays.
Walsh: It’s always so rewarding to hear how people’s lives are positively affected by the work that we do.
Ellsworth: A little bit later in the season, our partner April Williams sat down with Vanessa Potkin, who’s the director of special litigation at The Innocence Project. April and Vanessa discussed some of the thorny legal issues that were involved in overturning a decades-old conviction in the assassination of Malcolm X and how a newly discovered evidence law in New York led to the official exoneration of Muhammad Abdul Aziz and Khalil Islam.
April Williams: What exculpatory evidence was withheld?
Vanessa Potkin: So, there were at least 10 different FBI documents that discussed in detail the physical description of the shotgun assassin, and there were statements that not only described the person’s appearance, but also identified this person as being a lieutenant from the Newark mosque. And so, you had close to a dozen documents that really had information that was critical to the identity of the person who was actually the shooter, for whom Mr. Aziz was wrongfully convicted of being.
Walsh: This was a situation where a current legal case delved back into a pivotal moment in the history of the 1960s. April, Vanessa and their teams at The Innocence Project and WilmerHale so effectively reinvestigated this case and made important discoveries that led to an exoneration.
Potkin: You know, in some senses, the truth was already out there. The reinvestigation really was focused first and foremost on getting officials to take a look at what had been amassed and also seeing where else we could go, and this involved getting access to documents from the FBI. Many documents had been released but were heavily redacted. And now, during the reinvestigation, for the first time, we could see them with either less or no redactions. In addition, there were witnesses who were spoken to that no member of law enforcement had been in touch with over the decades, even though they had been out and talking about the case actively and information that they have.
Walsh: Kind of an amazing story and one that really brought the history of that difficult time back to life.
Ellsworth: On top of our normal season this year, we decided to also try something new. Anticipating yet another historic Supreme Court term, we brought together some of the accomplished and knowledgeable attorneys at WilmerHale to discuss some of the most consequential and interesting decisions that came out of the term that ended in June of 2023. We called that our Supreme Court miniseries.
Walsh: We’re looking to do this every year, and the first episode of the series was one where Felicia joined our partner Thomas Saunders to discuss the Supreme Court’s decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC, which was a hotly debated case involving trademark law and freedom of expression, and it centered around two items that very seldom appear in the same sentence: dog toys and whiskey.
Thomas Saunders: In a unanimous opinion, written by Justice Kagan, the Court was really trying to chart a middle course between two extremes. It criticized the parties for addressing the issues, in what it called the broadest possible way, with Jack Daniel’s attacking this Rogers First Amendment test across the board and VIP invoking the First Amendment in a way that would really make it difficult to enforce any trademark. And the Supreme Court says, we don’t need to decide whether the Rogers test or some other First Amendment standard properly applies in other cases; it’s enough for us to look at the product here and say when you’re using a mark like this as the designation of source on your goods—I mean, this is the name on the product being sold—then there’s no heightened standard under the First Amendment.
Ellsworth: Yeah, it was fun to have Tom join us to talk about that case and some of the funny moments at oral argument. Later in the miniseries, Partner Daniel Volchok joined us for our second episode, where he gave us an overview of the Supreme Court’s decision in Haaland v. Brackeen, which relates to a federal statute called the Indian Child Welfare Act and, more broadly, Daniel and I discussed the state of tribal rights in America. The decision in Haaland v. Brackeen was a significant one for Native American families because the Court’s decision upheld important provisions of the Indian Child Welfare Act, governing things like the adoption of Native children—something that has both a contentious and shameful history in America.
Daniel Volchok: As far as trends, I think it indicates that there’s uncertainty as far as the Supreme Court’s approach to Native issues, because Justice Barrett is still a little bit finding her way. And by and large, there are otherwise four relatively reliable votes for tribal interests—that is the three Democratic appointees and Justice Gorsuch. So, the trend to the extent there is one is that it is not clear exactly how the Court will come out on a lot of tribal issues, which just creates enormous uncertainty from tribes’ perspective in terms of whether there’s a desire to try to get certain issues up to the Supreme Court or maybe rather try to keep them in the lower courts to the extent possible.
Walsh: The outcome in this case was so important to tribal communities and to Native Americans. Other decisions by the justices have been cutting in both directions and offsetting the significant victory that the Native communities saw in Haaland v. Brackeen. Our third episode of the Supreme Court miniseries was particularly special, as we had former Colorado Solicitor General Eric Olson join us to discuss the Supreme Court’s landmark decision in 303 Creative v. Elenis, a case that he himself had argued before the Court on behalf of the state of Colorado. Our listeners might remember that the Court ruled in that case that a Christian wedding website designer could refuse to work with an LGBTQ couple to provide that couple with services because the action of creating a website was considered by the Supreme Court to be expressive under the First Amendment. Eric Olson really stressed that the Court did not put many limiting principles on this opinion.
Eric Olson: The Supreme Court said there’s a First Amendment right to be free of government regulation, even for conduct selling a product to somebody, and it’s not limited to same-sex couples or weddings or particular kinds of businesses. The language you use is, quote, those whose services involve speech now have an argument that they can refuse certain customers. It does not today mean that you have a constitutional right to discriminate against people on the basis of race, for example. But there’s now a constitutional right not to serve a member of a protected class, and it moves the frame of the discussion as to what is allowed and what is not allowed in our country. And those kinds of arguments about race, about disability, about gender, are coming because of this opinion.
Ellsworth: It was a very interesting case, and it was fascinating to get Eric’s perspective about what the Court’s decision meant. As Eric saw it, the Court’s decision opened the avenue for many people to claim that the First Amendment exempts them from certain forms of government regulation. And if he’s right, that could have profound implications for many different groups in the future. So, an important case and a really important and interesting perspective on it that Eric brought to that episode.
Walsh: Now, for our next episode of the series, our partner Matt Martens joined us to discuss the Court’s decision in Groff v. DeJoy, a case that centered around a postal worker who sought a religious accommodation from his employer not to work on Sundays in observance of the Sabbath. In that case, the Court reinterpreted the standard for religious discrimination claims in the employment context and made it easier for workers to win those claims.
Matt Martens: Well, I think what you’ve seen over the last probably decade, maybe a little more than a decade, is a Court that is much more vigorous in protecting religious liberty, much more protective of religious practice than perhaps prior Courts, even though the prior Courts were quite protective of religious liberty. I think you see it on overdrive with this Court, but most of those cases have been in the context of the individual vis-à-vis the government, whether the state government or the local government or public university, or the federal government in this case is unique in that it now takes a vigorous view of the rights of employees to engage in religious practice vis-à-vis private employers, and so I think it’s this move into the private sphere that distinguishes the Groff decision from the many other religious liberty cases that the Court has been handing down over the last decade.
Ellsworth: And finally, we concluded our Supreme Court miniseries with another visit from our very own Seth Waxman, one of the most experienced Supreme Court litigators in the country, who talked about the Court’s rejection of the independent state legislature theory in the case that’s called Moore v. Harper. We were just thrilled to welcome Seth back to the podcast. We might make him a co-host pretty soon, based on the frequency with which he appears.
Walsh: Many people were watching this case very closely because of the possibility that the Court could embrace a pretty aggressive legal argument that would have upended control over state elections, gutting the ability of even state supreme courts to exercise any oversight of federal elections or state elections, in giving basically unchecked power to state legislatures to set the rules. So, the Court’s decision rejecting that aggressive argument was a big relief for them. Seth noted an important caveat, though, in the opinion, which signaled that we haven’t heard the end of the case yet.
Seth Waxman: What the Supreme Court said in Moore v. Harper is that state courts, although obviously they are the principal adjudicators of state constitutional provisions, “do not have free rein to strike down laws governing elections” and that federal courts “have an obligation to ensure that state court interpretations of that law do not evade federal law.” And the Court went on to say it wasn’t going to articulate a particular test, but it adverted to the test articulated by Chief Justice Rehnquist in Bush v. Gore and Bush v. Palm Beach County Canvassing Board, which basically said that the US Supreme Court was not required to accept a state supreme court’s ruling that the Supreme Court deemed “unreasonable.” And so, there’s an important caveat that may provide the basis for future litigation.
Walsh: So that’s it, folks, for our whirlwind tour of this season of In the Public Interest. Now, all the episodes are available online, and in fact, we’re putting them all in one place so people can get to them easily. They’re linked in the show notes that we’ve got to this episode as well.
Ellsworth: Thanks as always, John, to you for co-hosting the podcast with me. It was another great season—lots of fun, lots of great episodes, and looking forward to Season 4 coming up soon.
Walsh: Absolutely. It was a particularly productive year, and we look forward to continuing this conversation and also, frankly, the Supreme Court miniseries, where there is so much that you can expect every term with the way things are going.
Ellsworth: Yeah, no shortage of interesting issues for us to discuss on the podcast. So, thanks to all of our listeners, and we look forward to seeing you in season four.