Author Archive | Matt Larsen

Monday’s post, titled Supreme Court Keeps the Faith, discussed the Court’s distaste for “faithless electors.”

In two 7-2 rulings today, the Court took its distaste for the faithless to a new level, ruling labor and health laws largely do not apply to religious organizations.

In Our Lady of Guadalupe School v. Morrissey-Berru, two teachers sued the Catholic schools that fired them.  One teacher said she was fired because she’d asked for a leave of absence to treat her breast cancer (she later died); the other said she was fired for being too old.  In neither case did the school cite a religious reason for the firings (the reasons were, respectively, an unspecified failure to follow the curriculum and keep classroom order, and difficulty administering a reading and writing program).  Though the teachers were not nuns or religious instructors (or, for one teacher, even Catholic), their duties included conveying …

Writing for a unanimous Supreme Court in today’s Chiafalo v. Washington, Justice Kagan upheld a state’s power to not just replace — but also to punish — “faithless electors.”  Such electors refuse to cast their Electoral College ballots for the presidential candidate the voters of their state selected.

The Electoral College is, of course, an anti-majoritarian abomination designed over 200 years ago to, among other things, placate white men who owned other human beings.  See, e.g., Juan F. Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C. Davis L. Rev. 1081 (2018).  Justice Kagan’s opinion notes some framers’ argument that the Electoral College would “entrust[] the Presidency to ‘men most capable of analyzing the qualities’ needed for the office,” and “would ‘be composed of the most enlightened and respectable citizens,’ whose choices would reflect ‘discretion and discernment.'”  Chiafalo, Slip. Op. at 12.  …