Keep Your Eye on Justice kennedy

As you have been noticing, many of these Establishment Clause cases come out 5-4, one way or the other. Until she left the Court a few years ago, Justice O'Connor was the swing vote, the median Justice, the one whose vote decided the case. But now that she has left, Justice Kennedy is the median Justice.

Here is how the Court looks right now:

I. The liberal, strict separationist block:

Stevens, Ginsburg, Souter, and (usually) Breyer

II. The conservative, non-separationist block:

Scalia, Thomas, Roberts and Alito

And that leaves Justice Kennedy who usually votes with the conservative, non-separationist block (see Allegheny), but occasionally (particularly on school prayer cases) votes with the separationists