Donald Trump has won a second term in office. Leah Litman, a University of Michigan Law Professor and co-host of the legal podcast Strict Scrutiny, joins Errin to break down election night. They respond to preliminary exit poll data, split ticket voting on abortion access, and the impact of another Trump presidency on America’s judicial system.
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On today’s episode
Our host
Errin Haines is The 19th’s editor-at-large and writer of The Amendment newsletter. An award-winning journalist with nearly two decades of experience, Errin was previously a national writer on race for the Associated Press. She’s also worked at the Los Angeles Times and the Washington Post.
Follow Errin on Instagram @emarvelous and X @errinhaines.
Today’s guest
Leah Litman is a professor of law at the University of Michigan Law School. She teaches and writes on constitutional law, federal courts, and federal post-conviction review. She is the co-host of Strict Scrutiny, a podcast about the US Supreme Court.
Follow Leah Litman on X, @LeahLitman, listen to her on the Strict Scrutiny podcast.
Episode transcript
The Amendment podcast transcripts are automatically generated by a third-party website and may contain typos or other errors. Please consider the official record for The Amendment podcast to be the audio publicly available wherever you listen to podcasts.
Errin Haines:
We ready?
Leah Litman:
As ever.
Errin:
Exactly. Let’s do it.
Errin:
Hey, y’all, welcome to The Amendment, a weekly conversation about gender, politics, and power from the 19th News and Wonder Media Network. I’m your host, Errin Haines. In the early hours of Wednesday, November 6, Donald Trump was declared the projected winner of the 2024 presidential election. Now, as of this recording, which is taking place at 1:00 p.m. on Wednesday, Donald Trump is also projected to have captured the popular vote. Republicans have gained control of the Senate. The House remains in contention and ballot measures to protect abortion access were largely successful across the country. I’m sure that a lot of you listening have a lot of big feelings about what happened last night. I think that we obviously knew that this election was gonna be close, that this was a possible outcome. You know, I certainly have written about and talked about how this election was always gonna be about not just which candidate we were choosing, but the direction of the country that we were choosing, and that this was gonna be an election about who we are as Americans.
Errin:
I think we found that out last night in a lot of ways. So, I’m also thinking about the folks that are going to be impacted by the result of this election, the people for whom this election felt consequential and existential and how they are processing this moment and processing how they are going to move forward, and how we all move forward as a country. As a newsroom, this was The 19th’s second presidential election. This was a newsroom that was born out of the 2016 election that really kind of planted a seed for us to think about things like electability and the role of gender in our politics and really what it means to normalize women’s leadership. So all of those things are on my mind on the other side of just an unprecedented election season, but I feel like it’s important for us to reflect on the events of last night and to look ahead at what the legal implications of another Trump administration are. So with that said, I’m really, really happy that I’m joined today by Leah Litman. Leah is a law professor at the University of Michigan. She’s the co-host of the legal podcast “Strict Scrutiny,” and she is a voice of clarity and reason and wisdom that I really need in this moment.
Leah:
Thank you so much for having me, Errin. As I was saying before we actually started recording, I’m very thankful that you are here continuing this conversation and providing the analysis and perspective of The 19th, which I think is more necessary than ever.
Errin:
Well, I’m very grateful for you as I do not have a law degree. So let’s get into it. Leah, would you say last night played out as you expected it to play out?
Leah:
I think going into the election, I was one of the people who thought Donald Trump was going to win the presidency. I did not see the margins being quite as large, at least as they look to be right now. And I think one aspect of the results that are a little perplexing to me, or at least are going to require some additional thought, is some of the split ticketing specifically on the issue of abortion.
Errin:
Yes.
Leah:
Versus the candidates at the federal level that voters were selecting. I think that is going to require some additional thought for me to process, because I’m not sure I saw that playing out exactly as it did.
Errin:
Yeah. I definitely wanna hear from those voters about what went into that decision, right? And what that … how their views really, really shaped how they eventually voted right at the ballot box with that very interesting splitting of what felt like a splitting of the ticket. Like I said, we knew this was gonna be a close election, and we knew this was gonna be a possible outcome in 2016, though I think I, you know, there was definitely a point where I felt like Donald Trump was going to be elected president.
Leah:
Mm-Hmm.
Errin:
You know, where I saw folks who were not necessarily advertising how they were gonna vote, but they were showing up, you know, at his rallies, at his events. I was going to those events. I was seeing folks who were, you know, my neighbors, members of my community, who were not, who did not, necessarily look like people at a Make America Great Again rally.
Errin:
Right? But who would be at a “Women for Trump,” for example, rally, and who we’re talking about things like the economy or education or, you know, kind of those priority issues for voters and seeing him as the person despite, you know, his tone, his rhetoric, his background. They saw him as the person who would be best equipped to lead the country. But that was also based on kind of a lot of things that we didn’t know in 2016 with him having the place that he’s had in American politics for the better part of a decade. This was not a year where voters were not informed about the former president. And so that’s what feels different: that this was still the outcome. I think that we were so focused on, too, the path to 270 electoral college votes, the idea that Donald Trump would win the popular vote — which he never has — and that it looks like maybe he will this time.
Errin:
That was not something that I expected either. You know, for much of this year, actually, I felt like Donald Trump was going to be president again. The momentum was there. His support had not eroded at all. And I went to the Republican Convention in Milwaukee, and I saw the excitement and enthusiasm for him. And if you remember, this was on the other side of the first assassination attempt.
Leah:
Mm-Hmm.
Errin:
And so many of his supporters really believed that he, his life, had been spared so that he could be reelected and govern on their behalf. And so that really kind of solidified, for me, that this was entirely possible and even probable.
Leah:
Mm-Hmm.
Errin:
But also, he had a different opponent then. Seeing the excitement and enthusiasm once Democrats had a candidate that they were excited about made me think that that was also something that could be highly probable. So yeah, I have to say, even though this should not be a surprising outcome given our partisan and divided politics, it is no less stunning an outcome, I would say.
Leah:
I completely agree. You know, our podcast is obviously very focused on the Supreme Court, and I think we are often in the position of saying it’s not surprising. It is nonetheless, however, worth thinking about how consequential and staggering and momentous, you know, some of the decisions are. And I think the outcome of this election definitely falls into that category because like you, you know — before the change in the candidate who was at the top of the Democratic ticket — it seemed like we were all but certainly headed for a second Trump presidency. And when Vice President Harris became the Democratic nominee, it felt like there was a chance for Democrats to defeat Donald Trump. But it was never a sure deal.
Errin:
No.
Leah:
And there were a lot of dynamics in play that again, made a Donald Trump second presidency seem possible. And again, at least for me going into the election, seem like the more likely outcome
Errin:
As we are continuing to kind of process the results of last night, we’ve got initial exit polls coming in, and I do wanna look at some of this initial, again, data. Exit polls change over days and weeks. So I just wanna remind folks of that. And in the lead up, a lot was made about the gender divide between the candidates with Harris polling much better with women and Trump running up the margins with men. But in looking at these initial exit polls, how did that bear out on election night?
Leah:
I think there was still a gender gap, but the reality is women in particular. White women did not split as much for Vice President Harris as I think some of the pre-election polls suggested was the case and was necessary for her to win the presidency. And this is one of the things that is going to require some additional thought, again, particularly when you see how people were voting for reproductive freedom ballot initiatives and state constitutional protections, and yet voting for Donald Trump as president. And also, again, this is just initial exit polling, but not very many voters listed reproductive freedom as one of their top issues. Instead it was democracy, which, you know, is also an interesting one to put up there, given the outcome of the election as well as the economy and immigration. And obviously we have seen a wave of anti incumbency outcomes in elections for the last few years. And I’m sure that that was a big part of the dynamic, but I think it would be impossible to understate and would be silly not to think about the gender dynamics. Not only, you know, how people perceive female candidates, but how women voters — right? — are White women voters are responding to female candidates as well, and how they perceive, you know, the relative threat to themselves and their freedoms and how they choose to respond to that.
Errin:
Yeah. Yeah. I mean, look, there is no group based on race and gender that votes a hundred percent for any candidate.
Leah:
No.
Errin:
Right. Like, that group does not exist. And yet, you know, you saw once again over 90% support among Black women for Kamala Harris. There was a lot of talk about what White women would do, especially given that you had a woman at the top of the ticket for the second time in eight years, and given their lack of support for the previous woman that was at the top of the ticket in 2016 for Hillary Clinton. I think this is an intersectional gender conversation that we are having. We’re not just talking about gender, we’re talking about race and gender and literally what it means to have skin in the game in terms of how we got here. And so, with that said, there was also a lot made about Black men and what they were gonna do. That exit poll data is showing something like 20% of Black men supported Donald Trump this time around, a lot of those were young men, that was sobering, I think, and something that we need to acknowledge as well. Not in terms of blaming, but just in terms of trying to understand what that dynamic is and also acknowledging that it is a real dynamic, right?
Leah:
I really appreciate the way you framed it. I was saying, I came from teaching a class and I really do think the urge to try to blame and identify, you know, the single monocausal explanation for what happened is not the right approach, especially right now. I think, first, like, we should be thinking about how to take care of the people who are going to be affected by this even though they might not have thought they were going to be affected by this. And then, second, we do need to look forward and figure out — right? — how to build what it is we would like to build. You know, you mentioned one difference between this time around and 2016 is voters knew who Donald Trump was and what he stood for. And I think about that in particular on the issue of reproductive freedom and abortion.
Leah:
Because in 2016, the prospect of overruling Roe versus Wade, ending the constitutional protections for abortion, seemed remote to many people even though that was written into the Republicans’ platform in 2016. And people didn’t really know what that world would look like, and they might have imagined it one way versus another. And we have now seen for over two years what that landscape looks like in places with abortion restrictions. We now know — right? — women, girls have lost their lives because abortion bans delayed their ability to receive needed medical care. And notwithstanding that, knowing that, and I think knowing that you never know whether you are going to be in a position of actually needing emergency medical care, emergency abortion care, people still decided to vote for the candidate that brought about the overruling of Roe versus Wade and the landscape that women are now living under in abortion bans. And that, too, is very sobering. And again, I am not sure, like, what to say about that or exactly what to think about it, but I am trying to be humble and give myself a little space before I try to, as you say, like, understand what happened and why to move forward.
Errin:
You brought up abortion on the ballot a couple of times here. I want to talk about that. It was on the ballot in 10 states last night. We first should talk about Florida. Where we saw the first post-Roe abortion measure fail. We know this measure faced unique hurdles. Should we expect to see this issue reanimated in the state?
Leah:
I’m not sure we should expect to see it reanimated in the short term. You know, the measure failed, but of course it obtained a majority of votes across the state. It just failed to secure the 60% support that was needed to enshrine it into Florida’s constitution
Errin:
Higher than any of the other abortion measures that we’ve seen pass, right?
Leah:
Exactly. And so, think back to when Ohio voters initially rejected a proposal to raise the threshold required to amend the state constitution and then adopted the state constitutional protections for abortion. But as you were noting, the amendment faced substantial obstacles and an extremely hostile environment in Florida that I don’t think is likely to dissipate. You know, there were state officials that were threatening local journalism and broadcast organizations with civil liability if they aired some ads that were supportive of the amendment leading to a federal court ruling telling the state officials to basically knock it off. And so I don’t see that issue making its way back on the state ballot in the near term until people, I think, have a better sense of why it failed and how to talk to people about this issue — and the broader issue of what we want our country to be and who we want to be. And until there is more understanding and security about how to message and win on that going forward is my intuition, but I don’t know.
Errin:
Yeah. “I don’t know” is gonna be a phrase that we hear probably a lot over the course of this podcast. So, there are some conservative states that are on track to pass abortion protections. Do these successful measures face any future legal or practical challenges?
Leah:
Well, of course they face real practical challenges. And I think this is what we’ve been alluding to, you know, up until now as far as the disjunction between voting for these state measures and yet voting for Donald Trump and Republican officials at the federal level. Because even if you enshrine protections for reproductive freedom in the state constitution, those will not protect you against a federal ban. And that includes, you know, if Donald Trump and whoever his attorney general is try to revive the 1873 anti-vice law, the Comstock Act, and enforce it as a federal abortion ban. States cannot provide immunities, right? Defenses to violations of federal law. That’s not how our constitutional system works. That’s not how federalism works. And a part of me wonders, you know, did people think they were secure if they adopted a state constitutional protection for abortion? That was something that came up, honestly, a ton canvassing and phone banking here in Michigan where we adopted a state constitutional amendment for reproductive freedom in 2022. I think a lot of people, honestly, including some medical providers, thought they would be safe because there was a state constitutional protection no matter what happened at the federal level. And I don’t know to what extent other voters thought that, but that is a real practical limitation of these provisions — is they just do not do anything when you are talking about federal prohibitions and federal restrictions.
Errin:
Yeah. How much do these state measures matter if we’re looking at the landscape that you just just described? I wanna transition into talking more about the legal ramifications of another Trump administration: how he would reshape the federal courts.
Leah:
Wow. This is frankly one of the lasting consequences we are going to be living with of a second Trump presidency for at least several decades. Obviously Donald Trump appointed three of the justices who voted to overrule Roe versus Wade. He appointed many judges to the Federal Court of Appeals, including the Court of Appeals judge who called on the Supreme Court to overrule Roe versus Wade in the case out of Mississippi — Dobbs versus Jackson Women’s Health Organization. And I think we are likely to see him get some additional Supreme Court appointments. I think it is very possible that both Justices Thomas and Alito will retire now that Donald Trump has won the presidency and Republicans have won the Senate, and they are likely to replace them with people in their forties who are as conservative, if not more so, than the justices they are replacing. That is going to lock in a supermajority Republican Supreme Court for at least 25 years, if not more, absent dramatic changes in our constitutional democracy or unforeseen events.
Leah:
And that is going to have momentous consequences — right? — for the next few decades. He’s obviously also going to be able to appoint many lower court judges and think about some of the lower court judges he has already appointed. Judge Matthew Kacsmaryk, a district judge in Texas who attempted to revoke mifepristone, one of the two drugs in the medication abortion protocol nationwide. I think we should expect him to be appointing more judges like Judge Kacsmaryk, and, you know, the judges he appointed to the courts of appeal, and in some ways we should be expecting him to appoint more of those judges and judges who are perhaps even further to the right because part of the last four years has been Donald Trump expressing dissatisfaction with the conservative legal establishment and the Federalist Society and his own Supreme Court appointees for refusing to hand him the 2020 election. So it’s very possible he is going to turn his ear to more extreme elements of the Republican party and select nominees who are even further to the right than his three previous Supreme Court nominees were. And, again, these judges are going to be on the bench for however long they would like, and that is it. It is difficult to foresee exactly what that is going to mean for the country, but I have no doubt that it’s going to be extremely consequential.
Errin:
On that note about Supreme Court appointments, we’re already seeing in the wake of this election — what we’ve been seeing before this election — calls for Justice Sonia Sotomayor to retire now. Could you see this happening as a result of this election?
Leah:
It’s difficult to know. You know, I think maybe, although I frankly don’t know that I see Senator Manchin and Senator Sinema allowing President Biden to confirm a Supreme Court Justice in what would be a lame duck session and the final two months of his administration. And even if she did that, that is not going to forestall a six-three super majority conservative Supreme Court for the better part of two decades at least.
Errin:
I wonder, too, if you have thoughts around the expansion of the Supreme Court Supreme. How you think about that conversation — that debate — now on the other side of this election, knowing the power that Donald Trump could potentially have having won the White House?
Leah:
Yeah, I mean, I always thought of those conversations as part of a reality where, like, our politics aren’t static, right? And they were, in part, an effort — right? — to talk to people about what the Supreme Court was doing, the stakes of the Supreme Court and an effort to talk to people about, well, if you care about reproductive freedom, if you care about economic inequality, if you care about the future of our democracy, the Supreme Court has to be a part of that conversation. Obviously, in a world in which Democrats did not win the presidency or the Senate and quite possibly the House — right? — those conversations are not going to materialize into anything. And honestly, like, one possible downside I see as far as the next few years is in the event that the Supreme Court, let’s say, reigns in one or two of the extreme things that Donald Trump might try to do over the next four years, I worry that people will lose sight of how much, I don’t know, difficulty, right? Or how much of a problem the Supreme Court has been for our democracy and for our freedoms. And I think conversations about the role of the Supreme Court belonged in discussions of our politics, but it’s just that they are not going to materialize into anything now given the outcome of the election.
Errin:
Absolutely. I’m wondering what you think about how Trump’s win could impact future cases in front of the Supreme Court.
Leah:
Yeah, so there’s at least one case where I see it affecting what the Supreme Court is doing, and then there are a bunch of other cases in which it might affect what the Supreme Court does as well as some lower courts. So the one case is the challenge to one of the state bans on gender-affirming care for minors, the Skrmetti case. So the reason why I think the Trump presidency could affect that case is because it was actually the Biden administration, the federal government, that asked the Supreme Court to review the lower court decision that had allowed the ban on gender affirming care to go into effect. It is impossible to imagine the Trump administration not switching positions once they come into power in January. So the Supreme Court is going to hear oral argument in that case in December. The Trump administration will begin in January.
Leah:
They’re likely to inform the Supreme Court that they change positions, and it’s possible that the Supreme Court would then either send the case back down to the lower court, order additional briefing, and it’s gonna cause, you know, some sort of procedural quirks — right? — or developments in the case. And then there are a host of others. I mean, obviously the election interference cases as well as the obstruction of justice and classified documents cases, those are likely to be affected because Donald Trump has promised to fire Jack Smith and pretermit those cases through whatever means he has to do so. And given the Supreme Court’s immunity decision, it seems like he has quite a lot of power — right? — to end those investigations.
Errin:
Yes. To your point, I mean, Trump is returning to office against the backdrop of the Supreme Court’s immunity case.
Leah:
Yep.
Errin:
We’ve talked about that in the hypothetical, but now, you know, we’re here. We know what we’re looking at. How should we expect to see the expansion of presidential power playing out in a second Trump administration?
Leah:
I mean, it is, again, I am reticent to offer precise predictions because of course — right? — he has promised many things. Project 2025 has laid out many things, and I don’t know exactly what is going to materialize, but some possible prospects include the weaponization of the Department of Justice, the Internal Revenue Service, as well as different federal agencies that are basically told and forced to go after perceived political opponents to critics in the media. And that is one possible concern. You know, it is also possible that those agencies, as well as others like the Department of Education, will be weaponized against other institutions that are perceived to be critical of Donald Trump, like institutions of higher education, you know, that are threatened with potentially loss of federal funds unless they fall into line with some of the priorities of the Trump administration. Also very concerned about what the president will do by way of immigration.
Leah:
You know, when Donald Trump was first in office, he attempted to end the Deferred Action for Childhood Arrivals Program. I think that is potentially on the table again this time around. He has also, of course, promised mass deportations and the idea of him mobilizing again, you know, the vast resources of the federal government to potentially throw out of the country individuals who have some legal status, right? And are lawfully here. That can’t be ruled out, either. And so those are just some possibilities, and we don’t know exactly what that is going to look like, but that’s some of what I was alluding to earlier when I said, you know, the first priority has to be thinking about how to take care of people in our communities, the institutions — right? — that matter to us, right? That are part of our civic society and our culture. And that is going to be part of the battle for the next four years.
Errin:
I just wonder if, for you, whether there are any checks and balances left to reign in the former president. I mean, he said in his acceptance speech last night that his victory is a mandate. He’s seeing his victory as a mandate.
Leah:
Yeah. I mean, again, as you were saying earlier, people knew who he was, right? They knew what he was promising and they voted for him anyways. And so, I don’t think he is wrong to say, “These are the things I put on the table that I am now going to try to do because people knew I said I was going to do them.” I think you are also right to be picking up my intuition that there are very few checks and balances left as far as the likelihood that the federal courts will restrain Donald Trump. I think that is a pipe dream and is only going to happen right in the rarest of circumstance. Obviously, you know, with losing the Senate, Congress is kind of out of the picture. We have seen the Republican party just kind of pledge its fealty, right?
Leah:
And be willing to just toe the line — party line — with Donald Trump. And so that eliminates the legislature. Of course, there are things that states and local governments can try to do, and should do, but those are not going to be a complete solution or fail safe, you know, in part because that’s not an option in some places. And in part because there are limits to the extent to which states and localities can push back against the federal government, and that leaves our civic institutions, which as we were saying, are vulnerable to the threats and course of power of a second Trump administration. And I don’t mean to be reciting all this to say we should give up and it’s hopeless. Instead, I mean to be kind of clear-eyed about what the prospects of the next four years could look like, so we can prepare right to fight for what we care about and know what might lie ahead in that fight.
Errin:
Yeah. Well then, I guess, um, you know, as we close out our conversation, what are those prospects that you see, that you’re beginning to think about, as you think about what the work ahead looks like?
Leah:
Yeah. So, um, I should first acknowledge that I’m trying to give myself a little, uh, breathing room. So like 24 to 48 hours of, um, some combination of breathing, grief and sadness before trying to dig in and figure out exactly what needs to be done and how. And I am also trying to be humble about understanding, like, what exactly happened and any pronouncements about what will happen next because, in some ways, like, that is unknowable. I can say, you know, the things that I am concerned about. But I don’t pretend to have any exact solutions for, you know, how to safeguard this. You know, one is I am very concerned about the availability of health care for women, for the transgender community, and those are going to be very real stakes that are going to be immediately threatened come January and could be threatened before that, right?
Leah:
As individuals, kind of, acquiesce to the prospect of the next Trump administration. Again, like, I don’t pretend to have any solutions beyond encouraging people not to abandon their friends and families and not to kind of acquiesce in what is likely to be — right? — a kind of campaign of terror for people who need health care. I am extremely concerned about them silencing civic institutions, whether that is the media institutions of higher education, professional organizations. We’ve already seen some self-censorship and acquiescence in the lead up to and immediate aftermath of the election. That is something that I want people to be able to resist, but also be clear-eyed that there will be consequences for not acquiescing or self-censoring. And, you know, I, again, like, I want us to be trying to stay abreast of what is happening to the people we care about, so that when terrible things happen, we are there to try to pick each other up and help each other the best we can.
Errin:
Yeah. I think a lot of where you are is where I am as well. I wrote in my final column before the election day that now is the time for us to make the promise of The 19th Amendment real — that the emerging democratic majority of this country must also be equal framers of our democracy. And I think that that is work that continues even on the other side of this election. So focusing on the doers in our democracy, focusing on people who are still committed to a freer, fairer, more equal America. That is work that continues no matter who our candidates for president are, no matter who our president is, that is the work of all of us, and that is the work of this newsroom and my work as editor-at-large. And so, Leah, thank you so much for being here to help me think about all of this and to help everybody who’s listening to think about this and the road ahead.
Leah:
Thank you again for facilitating the conversation and sharing it with people. It’s, as I was saying, part of what is necessary to be thinking about and doing now.
Errin:
Thanks for being with us to process this historic election. I wanted to remind all of you that The Amendment is also a free newsletter that you can sign up to get. I’ll be processing this presidential campaign, the results, its impact and what’s gonna happen next. I want you to know that the work continues here at The 19th, where we are normalizing women’s leadership and looking for the asterisk of the news cycle. Who’s being left out? What do they have to say? What are the headlines not telling you? You can subscribe at 19thnews.org/amendment, and I’ll be in your inboxes real soon.
The Amendment is a co-production of the 19th News and Wonder Media Network. Our executive producers are Jenny Kaplan, Terri Rupar, Faith Smith and Emily Rudder. The show is edited by Grace Lynch and Julia B. Chan, produced by Brittany Martinez, Grace Lynch, Alyia Yates Grau and Luci Jones, and post-production support from Julie Bogen, Lance Dixon, and Wynton Wong, artwork by Aria Goodman. And our theme music is composed by Jlin.