(02-02-2011 05:04 AM)Owl 69/70/75 Wrote:  

(02-01-2011 11:59 PM)WMD Owl Wrote:  You all forget Kagan's Office filed a Brief supporting he DoJ's position in the Florida litigation.
Using her prior recusal position, that takes her out of this case... making it a 8 Justice Court.
A 4-4 decision won't work. You need 5-3 to find it unconstitutional.

Agreed, but that's really no change, because she was always going to vote to uphold. Either way you need 5 to overturn, and she's not one of them.

I assume she will recuse, though I don't believe she is obligated to do so. It keeps her looking clean, and it doesn't affect the outcome.

Of course, I can see the democrats searching far and wide to try to trump up some reason why one of the conservative justices should recuse ("Justice So-and-so once went to the doctor and paid cash for it, so he's prejudiced against insurance"), and if he doesn't then Kagan stays and they try to taint the outcome.

The democrats have a LOT at stake here. Will they try to screw the process? I wouldn't put it past them.

Is that right? It seems to me that it would take 5 votes to overturn the lower court decision that it IS unconstitutional... and Kagan is expected to be one of the votes to overturn... meaning that if she recuses, it has the effect of being a vote to UPHOLD the lower court ruling that the bill is unconstitutional... sort of like NFL replay, right? They aren't so much voting on the bill as they are voting on the lower courts ruling on the bill.... or am I wrong here? Usually it doesn't matter with an uneven number on the bench

I KNOW you know this, so ONE of us is confused... and I suspect it is me misreading your comment.