THERE GOES THE "BUT THE JUDGES" EXCUSE....:

Take, for instance, the Supreme Court's June decision in American Legion v. American Humanist Association. The case asks whether a 40-foot-tall cross-shaped war memorial in Prince George's County, Md., violates the First Amendment's command that "Congress shall make no law respecting an establishment of religion." Ultimately, the court ruled 7-2 that the cross does not violate the First Amendment.

At first glance, the opinions handed down look much like the high court's other Establishment Clause cases from the past half-century. With no justice capable of assembling a majority coalition, this case has nearly as many separate opinions as the court has members. It appeared that, once again, the court succeeded only in further muddying the waters with competing tests and conflicting theories, with none gaining a majority. 

Or maybe not. Hidden underneath a pile of concurring and dissenting opinions, a careful observer might detect the outlines of a consensus. For all its seeming divisiveness, a clear majority of the court now endorses something akin to what Justice Brett Kavanaugh referred to as a "history and tradition" test, wherein the historical context of the challenged government action, and how it fits into the tradition of religious liberty in America, takes center stage. 

Kagan and Stephen Breyer, generally considered members of the court's left wing, at least tepidly acknowledge the importance of tradition and historical context in analyzing challenges made to government action under the Establishment Clause. Both justices joined the majority in the Prince George's cross case, remarking in the process that they agree that courts should "look to history for guidance" in these types of cases, while writing separately to express concern about Samuel Alito's meticulous originalist approach.

While significant disagreements remain among the justices, history and tradition are now central to the discussion in a way that would have been unthinkable only 20 years ago.

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