Obama packed Kagan

I guess everybody who is following real news knows:

Obamacare, took another body blow when the 11th Circuit Court ruled Friday that the individual mandate requiring adult persons in the U.S. to purchase health insurance is unconstitutional.

That’s good news to be sure, but I see a hidden danger in this next excerpt from John Ransom’s piece:

“Supporters of limited constitutional government need to temper their celebrations — just as they wisely tempered their sorrows after the last ruling — because we must all now realize that this will not end until the Supreme Court rules,” Shapiro concluded.

The danger originated with FDR’s court-packing scheme. My comments follow this article explaining the scheme:

Hornberger’s Blog
Thursday, January 15, 2009

FDR’s Infamous Court-Packing Scheme
by Jacob G. Hornberger

Among the things that pro-New Deal advocates hardly ever bring up is one of the most shameful acts by a president in U.S. history. That’s the infamous “court-packing” scheme that President Franklin Roosevelt proposed when the Supreme Court was declaring much of his New Deal unconstitutional.

Not only was the philosophy of the New Deal, with its elements of socialism and fascism, alien to the principles of liberty and free markets on which our nation was founded, it was also in violation of the principles of limited government established by the Framers in the Constitution. That was why the Supreme Court was declaring much of the New Deal unconstitutional

There were four justices leading the way toward declaring New Deal programs unconstitutional: Sutherland, Van Devanter, Butler, and McReynolds. They became known as the Four Horsemen. Sometimes, the decisions declaring a New Deal program were 5-4, with a justice named Owen Roberts joining the Four Horsemen.

Roosevelt had an option that he could have pursued to circumvent the Supreme Court, one that the Constitution itself provided. To achieve the economic revolution that he sought, he could have pursued an amendment to the Constitution, one in which he formally asked the American people to reject the free-market way of life on which the U.S. had been founded and to accept a socialist and interventionist economic system.

Instead, he deceitfully led the American people into believing that this new economic system would actually “save” freedom and free markets, despite the fact that its welfare-state and regulatory principles were directly contrary to those of a free-enterprise system, that is a system free of government control and interference.

Even worse, once he realized that the Supreme Court was interfering with his plans by simply doing its job, he proposed his infamous plan in which he sought to pack the Supreme Court with his judicial cronies, so as to have the necessary votes to sustain the constitutionality of his programs.

Here’s how FDR’s plan was going to work. For every justice over the age of 70, Roosevelt would be able to appoint an additional justice. He had calculated that given the ages of the sitting justices, his plan would give him the necessary votes he needed to get his program sustained.

Roosevelt claimed that the reason he was proposing his plan was simply to relieve the workload of the Supreme Court. It was just more deceit, which was exposed when the Chief Justice of the United States showed that the Court was up-to-date with all its cases.

To the everlasting credit of the American people, they raised a tremendous uproar and protest against the plan. By and large, Americans realized that Roosevelt was altering America’s economic system in fundamental ways. After all, they lived in a country in which people had lived for more than 125 years with the right to accumulate unlimited amounts of wealth and to do whatever they wanted with it—and in a country in which economic activity was, by and large, free of government control.

But given the Great Depression, many Americans were willing to let Roosevelt get away with his new-fangled economic system. Not so, however, with the judicial system that the Framers had established with the Constitution. Americans refused to let FDR go that far, and their outcry against his court-packing scheme caused Congress to overwhelming defeat it.

Roosevelt, however, ended up winning the war. Soon after his court-packing scheme went down to defeat, Justice Roberts voted with the other side in the watershed case of West Coast Hotel vs. Parrish in 1937. From day that forward, the Supreme Court would never again declare any of Roosevelt’s economic programs unconstitutional, especially once the Four Horsemen began retiring from the bench and being replaced with pro-New Deal justices.

While Roberts always claimed that he had not switched his vote in response to Roosevelt’s court-packing scheme, his vote became known in judicial annals as the “switch in time that saved nine.”

Unlike the legislative branch, which oftentimes responds to popular will, the role of the judicial branch is different. Its job is simply to place legislation against the Constitution and determine whether the two are consistent, regardless of whether the legislation is popular among the masses or not. If it isn’t constitutional, then it is the job of the Court to so declare it. With his court-packing scheme, Roosevelt tried to tamper with that system. While the scheme failed in the short run, Roosevelt got his way in the long run.

Jacob Hornberger is founder and president of The Future of Freedom Foundation. Send him email.

http://www.fff.org/blog/jghblog2009-01-15.asp

FDR failed to pack the court, nevertheless:

Roosevelt, however, ended up winning the war.

To more accurate FDR’s heirs won the war.

Democrats saw the wisdom in the failed court-packing scheme. Instead of increasing the number of justices on the High Court, they spent decades packing the court with activist judges whose judicial philosophy went far beyond the judicial philosophy of pro-New Deal justices. I doubt very much if pro-New Deal justices were also in favor of Roe v. Wade and so much of the socialist agenda the Supreme Court legislated after FDR was long gone.

Democrats appointed judges throughout the federal court system who saw nothing wrong with legislating from the bench. That “scheme” turned out to be more effective than FDR’s original scheme as the history of judicial activism shows.

The court overturning the Patient Protection and Affordable Care Act is guaranteed to renew efforts to pack the court. In short: A Democrat president working with a US Senate controlled by Democrats will pack the court with more judicial activists of a liberal persuasion if and when Hillarycare II is overturned. Think about that in relation to the coming elections.

Think about this, too. The close split between activist judges and strict constructionists must be abandoned if the socialist agenda is going to survive. Declaring Hillarycare II unconstitutional leaves Socialists no choice but to drop every pretense of maintaining a court where rulings hinge on the elusive “swing vote.” A supermajority of liberals on the court will become the Democrat goal in the years ahead.

Finally, Hussein, Pelosi, Reid, etc., surely had an inkling the Patient Protection and Affordable Care Act would be challenged all the way to the SCOTUS. The ruling by the 11th Circuit Court should reignite the issue of Elena Kagan’s recusal. A cynic might say that Hussein pulled an FDR when he packed the court with Kagan.

Here’s the link to the article I quoted:

John Ransom
Obamacare Gets Thumbs Down by Death Panel

http://finance.townhall.com/columni...re_gets_thumbs_down_by_death_panel/page/full/

 

President Obama has said he wants judges who make decisions based on personal bigotry and racism rather than the law. For once, he's following through on what he said.

 

While I, and many others, are following the progress of Hillarycare II in the courts:

“. . . a case largely ignored by the media, dissenting Justices Breyer, Ginsburg, Sotomayor and Kagan carried judicial activism to new heights by advocating a stay of execution on the basis of an imaginary law.”

Look at the incrementalism that has taken place since FDR’s court-packing scheme supposedly failed.

FDR wanted nothing more than a court that would uphold socialist legislation. Democrats who came later took the court-packing scheme to the next level by appointing judges who would legislate from the bench as well as uphold unconstitutional laws. Citing imaginary laws is the next level.

It’s only a matter of dumb luck liberals were not in the majority this time:

“. . . however, the United States is but one justice away from a majority so arrogant and incapable of embarrassment as to see no need even to resort to this pretense in usurping the democratic process. We are perilously close to five imperial justices so hell bent on ramming their unpopular personal values down the throats of an unwilling public that they will enforce laws that they themselves acknowledge do not exist -- in this case, for the benefit an unspeakably barbaric murderer.”

Really! Do such justices have anything but contempt for the rule of law, contempt for the legislative process, contempt for the Constitution that clearly specifies that process, contempt for self-government and, ultimately, contempt for the American people?”

More to the point, liberal justices deny that there is a covenant between the governors and the governed. The US Constitution represents that covenant. Every time Supreme Court liberals get away with violating the Constitution they move the country one step further away from government of the people, by the people, and for the people.

August 14, 2011
The Threat Of Liberal Judicial Activism Reaches New Heights
By Lester Jackson

In making the case for judicial review, Chief Justice John Marshall pointed out that judges take a sworn oath to uphold the laws of the United States. Until last month, it would have been unnecessary to stress that he was obviously referring to actual laws, not the unfulfilled fantasies of a lone member of Congress. Nevertheless, on July 7, in a case largely ignored by the media, dissenting Justices Breyer, Ginsburg, Sotomayor and Kagan carried judicial activism to new heights by advocating a stay of execution on the basis of an imaginary law. They thereby revealed themselves to be so desperate to save barbaric murderers that they unashamedly and brazenly sought to apply un-enacted legislation introduced on June 14 by one senator, Patrick Leahy, with not a single cosponsor and by no representative at all. They had to know that this was not going to pass, because it had never been seriously considered in over seven years -- even when those least unlikely to vote for it controlled both houses of Congress and the presidency.

On May 20, 1994, Humberto Leal Garcia raped and murdered 16-year-old Adria Sauceda, whose skull he crushed and whom he left with a long stick protruding from her insides. Although he had lived in the United States since before he was two years old, Leal sought to avoid execution by taking advantage of the fact that he was a Mexican national who, he contended, should have been informed of a treaty right to Mexican consular assistance. No claim was made that he had in any way been prejudiced by lack of such assistance or that he was anything but clearly guilty as charged. (Indeed, he confessed when he was finally executed.)

A mere three years earlier, the Supreme Court had rejected an identical claim. Jose Ernesto Medellín, a Mexican national who had been in this country since preschool (4), had bragged about brutally robbing, raping, and murdering two girls, 14 and 16. The Court cited congressional refusal to pass a law required to enforce a consular consultation right. As stated by the Leal dissenters, the Court had "held that, because Congress had not embodied our international legal obligations in a statute, the Court lacked the power to enforce those obligations as a matter of domestic law." But they went on to assert that Leal's applications "do not suffer from this... legal defect" thanks to Leahy's bill.

It is noteworthy how easily the Leal dissenters slithered from lack of a statute to pending legislation, inviting the gullible to believe that the latter is a substitute for a duly enacted law. Their claim that it had a good chance of passing was obviously disingenuous, refuted by the lack of even one cosponsor and the failure to pass it since the need for it first became apparent seven years earlier.

The real aim of this artful exercise is transparent. Justices opposed to capital punishment (which has overwhelming public support) seek to sabotage it at every chance. Opponents routinely resort to absolutely anything to delay executions. There is no argument or ruse too preposterous (47) for them to try.

Here, the dissenting justices sought to grant "alien" murderers a right not possessed by citizen murderers: to call their "native" country's consulate even if, like citizens, they were raised and educated in the United States. This would be one more weapon to employ in the death penalty opponents' long term strategy of endless delay. If granted, would it surprise anyone if the same justices pivoted to seek a bar to executions of American citizen murderers on the equal protection ground that they lacked a right enjoyed by aliens?

In the end, the Leal case was shockingly significant, not because of its particular extremely gruesome facts barely touched upon here, but because of what it revealed about those at the apex of the legal system. Four justices proclaimed themselves disposed to implement, as if actual law, any pending legislation that suits their fancy -- even if proposed by but one legislator, one percent of the Senate or 0.19% of the entire membership of Congress.

It is, of course, nothing new for critics, including justices themselves, to accuse the court of rewriting law, twisting and torturing it beyond recognition. But, until now, there was at least a pretense of making decisions based on actual law. Resort to such pretense is bad enough!

Now, however, the United States is but one justice away from a majority so arrogant and incapable of embarrassment as to see no need even to resort to this pretense in usurping the democratic process. We are perilously close to five imperial justices so hell bent on ramming their unpopular personal values down the throats of an unwilling public that they will enforce laws that they themselves acknowledge do not exist -- in this case, for the benefit an unspeakably barbaric murderer.

Really! Do such justices have anything but contempt for the rule of law, contempt for the legislative process, contempt for the Constitution that clearly specifies that process, contempt for self-government and, ultimately, contempt for the American people?

And is the time coming for the people to reciprocate that contempt? Repeatedly, justices have expressed concern for the Supreme Court's legitimacy and public confidence, lest they be perceived as merely imposing their own subjective views rather than impartially and objectively applying the law. What will happen to that legitimacy and confidence if more Leal type dissenters are appointed?

The Leal dissent has exposed, in very raw form, just how critical the 2012 election will be. The nation is one justice away from a majority that sees no need even to pretend adherence to actual law in seeking to impose their own subjective values.

From time to time, there are calls for making Supreme Court nominations a major issue in presidential elections. These calls have never been really met.

This time, the presidential candidates should wake up. They should be talking seriously and often about justices who have contempt for the law, so that the American people will also wake up to the danger.

If they don't wake up in 2012, they surely will wake up in 2013 to a Supreme Court that a majority of Americans do not respect because the majority of the Court lacks respect for them. In turn, that will call into question the very legitimacy of judicial review for which Chief Justice Marshall so eloquently laid the groundwork.

http://www.americanthinker.com/arti...al_judicial_activism_reaches_new_heights.html

 

Might wanna rethink the title of this thread, I thought it was about something else.

 

To countryboy: LOL. I never saw the double-entendre.

 

Meh... "Judicial activism" = "Judge made a decision I don't like." There really is no such thing.

But yeah, the "switch in time" was pretty horrible. The Lochner line of cases should have continued.

 

The enclosed article is pretty good analysis of where the Patient Protection and Affordable Care Act is at:

Earlier this week, the U.S. government failed to file a request for re-hearing of their case before the full panel of the 11th Circuit Court of Appeals. Failure to file for the re-hearing likely means one of three things. The Obama team wanted no part of the unfriendly 11th Circuit, is willing to accept a version of ObamaCare without the insurance purchase mandate (a possibility Rush Limbaugh pointed out Wednesday), or believes it has a winning argument to take to the Supreme Court.

For Hussein & Company to believe they can win in the Supreme Court they must be certain Associate Justice Kagan will not recuse herself as she should. If she does not recuse no future justice will be ethically obligated to recuse no matter the evidence for recusal.

Kagan or no Kagan one thing is clear:

“. . . the legislative repeal of ObamaCare, must continue.”

That makes every U.S. Senate election a “must win” election for conservatives.

In addition to the enclosed article you might want to take a look at the Senate’s current makeup in relation to actually repealing Hillarycare II:

The Lawyers Rule
Alan Caruba Thursday, September 29, 2011

http://canadafreepress.com/index.php/article/40829

After reading a breakdown of the professions dominating the Senate, I concluded that a big bunch of those people have a vested interest in seeing Hillarycare II stand.

September 30, 2011
Justice Kennedy and the Fate of ObamaCare
By Joseph Ashby

It's been one year, six months, and eight days since it happened. White-hot tempers have cooled. Dire predictions are rarer. Unlike many tumultuous situations, which in retrospect appear unworthy of our ire, the intensity that accompanied the passage of ObamaCare was well-suited to the size of the cause.

Throughout the Western world, government-run health care has served to catalyze a permanent leftist political climate. Unlike the relatively limited nature of our current welfare state (which is already bankrupting the nation), the Patient Protection and Affordable Care Act is designed to reach across all age demographics and into nearly every income bracket.

Because of its near-limitless reach, if fully implemented, ObamaCare will quickly become a political force surpassing even Social Security and Medicare. Once that happens, the only way to win elections will be to promise not to touch government health care. Every politician will have to accept and even endorse issues that are now championed only by the far left.

The morning after ObamaCare passed, the Los Angeles Times announced that the Democrats had won a 100-year war, but the war didn't end. Once the law passed, Americans began a two-pronged effort to sabotage the left's well-laid plan, and thereby rescue America from an ominous fate.

The success of the first prong, judicial action, will likely be determined by late next spring.

Earlier this week, the U.S. government failed to file a request for re-hearing of their case before the full panel of the 11th Circuit Court of Appeals. Failure to file for the re-hearing likely means one of three things. The Obama team wanted no part of the unfriendly 11th Circuit, is willing to accept a version of ObamaCare without the insurance purchase mandate (a possibility Rush Limbaugh pointed out Wednesday), or believes it has a winning argument to take to the Supreme Court.

With four reliable liberals and four reliable constitutionalists on the Supreme Court, many consider the court's decision to rest with Justice Anthony Kennedy. Kennedy's recent votes are both cause for hope and concern for those fighting ObamaCare.

For example, in the 2005 Kelo decision, Kennedy sided with the liberal wing of the court. The decision allowed a municipal government in Connecticut to seize private lands through eminent domain and hand the land over to other private interests. Kennedy wrote in a concurring opinion that as long as there was a proper "rational-basis test" which justified government taking the land, then the use of eminent domain was constitutional.

If Kennedy finds the health insurance mandate "rational" or a necessity to address health care costs, the unthinkable (but very possible) may occur: ObamaCare may get the SCOTUS stamp of constitutional approval.

Opponents of the president's health care law will find the Citizens United decision more encouraging, both because Kennedy fell on the side of the Constitution and because of its analogous similarity to ObamaCare. In both Citizens United (free speech) and the Affordable Care Act (right to property), the law in question gives the federal government such broad power that even dependable moderates like Kennedy cringe.

The most iconic moment of the Citizens United case came during oral arguments, when Chief Justice John Roberts questioned deputy solicitor general Malcolm Stewart on what types of speech the government could outlaw:
Roberts: If it's a 500-page book and at the end it says, "so vote for X," the government could ban that?

[Snip]

Stewart: If you have Citizens United or General Motors using general treasury funds to publish a book that at the outset, for instance, that Hillary Clinton's election would be a disaster for this --

Roberts: No, no. Take my hypothetical. It doesn't say at the outset. "Here is a..." whatever it is. "This is a discussion of the American political system." And at the end it says, "Vote for X."

Stewart: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

Roberts: And if they didn't you could ban it?

Stewart: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

Several months later, the Court heard a second oral argument on the same case. In the second round, then-Solicitor General (now Supreme Court justice) Elena Kagan was asked about the potential that the Federal Election Commission could ban books. Kagan responded that the FEC had the power to ban books, but has never and most likely would never use that power. A somewhat shocked Justice Antonin Scalia tersely responded, "We don't put our First Amendment rights in the hands of FEC bureaucrats."

After the oral arguments, Kennedy voted with the originalists on the court. The majority opinion, written by Kennedy, was laced with statements that suggested he was greatly affected by the back-and-forth over book-banning. "When Government seeks to use its full power," wrote Kennedy, "including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought."

When ObamaCare goes to the Supreme Court, the Scalias and Robertses of the bench will no doubt pin down the administration lawyers on the individual mandate.

If the government can force citizens to buy health insurance, what will stop the Congress from mandating the purchase of cars, homes, food, or any number of products or services? There is no good answer to that question because, if we must buy one product, there is no sufficiently definable limit on congressional power regarding our personal purchasing decisions. We can hope Justice Kennedy will be greatly affected by that argument as well.

But to depend on Anthony Kennedy is a little like a soldier who takes cover behind a sapling during a firefight -- the sapling may stop the bullet, or it may not. Which is why the second prong, the legislative repeal of ObamaCare, must continue.

Even if the Supreme Court declares the individual mandate unconstitutional, there is no guarantee that the justices will throw out the entire law. The American people would be left with the taxes, regulations, massive Medicaid expansion, and other harmful provisions of the health care law. If that is the case, the defeat of ObamaCare through the republican process is our only avenue. The 2012 elections will be our best shot (and maybe our only real chance) of stopping the law.

Obama and the wordsmiths at the White House think themselves quite clever dubbing ObamaCare "Obama cares." The truth is that Obama doesn't care. It's incumbent upon the rest of us to stop this destructive law before it's too late.

http://www.americanthinker.com/articles/../2011/09/justice_kennedy_and_the_fate_of_obamacare.html

 

I think you spelled it wrong- Obama 'picked' Kagan.

Clearly you don't understand what FDR was attempting to do, or why the country rejected his effort. The majority of justices during the first part of the New Deal rejected much of his legislation. FDR, attempting to get around it, proposed expanding the numbers of the Justices, so he could appoint enough new Justices to achieve a sympathetic majority.

That was rejected by the people as a clear attempt to bypass the Supreme Court's objections.

Now Kagan was picked by Obama, and approved by the Senate, just as every other Justice has been. There was no attempt to increase(pack) the Supreme Court. Just as Bush appointed Roberts in large part because he believed Roberts judicial philosophy reflected Bush's so did Obama chose Kagan.

My prediction: If the Supreme Court rejects the Obama Health Care legislation, you- and your ilk will applaud the courts and point out how fair and objective they were.

And if the do not reject the legislation, you will attack them for blatant partisanship.

Me? I am really curious how the court will rule. I could see it going either way. Unlike the Citizen's United ruling, I have no firm position in this.

 

To SFJEFF: Clearly you do not understand the difference between packing and picking. FDR’s original scheme was thwarted, but every Democrat president since him tried to pack the Court with justices who would circumvent the Constitution by legislating from the bench. Republicans try to pick judges who will uphold the Constitution. Justices Warren, Brennan, and Souter are the most obvious examples of Republican mistakes. Still, Presidents Eisenhower and Bush the Elder believed they were PICKING men who would uphold the Constitution.

For many years every Democrat-controlled Senate has been in on the court-packing scheme. Not only do they pack the court with judicial activists whenever they can they block nominees like Robert Bork.

Also, look at the tactics Senate Democrats used in their attempts to destroy Thomas and Alito while Republicans are usually so intimidated by the media they let judicial activists like Ginsberg, Breyer, Sotomayor, and Kagan waltz on in with nary a tough question asked.

Re: Hillarycare II: The entire legislative monstrosity should be overturned because it is unconstitutional. Unfortunately, upholding it will be an easy one for judicial activists. The only thing I’m looking forward to is the Court’s justification for the government ordering Americans to purchase this, that, and everything else. Such a ruling will finally codify socialism’s governing principle: Socialists must tell people what to do rather than what not to do.

Finally, the Eric Hoffer quote following my signature is the only justification anyone needs to oppose Hillarycare II.

 

LOL @ thinking that Republicans do any differently than Democrats at picking justices.

Once again proving that, "judicial activism" is simply code for "judge made a decision I don't like."

 

Exactly.

Every President has nominated Supreme Court justices for his own political purposes- and in every case hoping that that justice would interpret the Constitution in the same way as that President.

And for the last 20 years, the opposition has made the same claims that whatever justice the President chose is an idealogue who will destroy the Constitution.

Yet in each case each President- other than FDR- has followed the Constitution- nominating a justice, which is then reviewed and approved or not by the Senate.

I may happen to disagree with Roberts and his ideology and many of his decisions. But I am not so biased as to claim that Bush was 'packing' the court, rather than simply chosing a Justice that he thought would represent his interpretation of the Constitution. Just as Obama did. And the next President will.

 

There was never much hope that Kagan would recuse herself. Things must be getting tough though. The Justice Department is running interference for her. And why not? Holder has nothing to lose. He has his own problems with Fast & Furious. My guess is that thinking at the JD has been reduced to “Getting hanged for two misdeeds with the same rope at least saves on the cost of ropes.”

November 4, 2011
DOJ refuses to release Kagan Obamacare documents
Rick Moran

There are plenty of Republican congressmen and senators who believe that associate justice Elena Kagan should recuse herself from the upcoming Supreme Court case involving the constitutionality of Obamacare because of her service as Solicitor General.

Emails released last summer clearly showed that Kagan's interest in Obamacare exceeded the threshold by which judges should voluntarily recuse themselves:

The wrestling match over whether Supreme Court Justice Elena Kagan should recuse herself from any Supreme Court cases challenging ObamaCare continues. Since a series of emails between then-Solicitor General Kagan and her principal deputy, Neal Katyal, were made public this summer, questions have continued to percolate over whether Ms. Kagan's involvement in the case as an Obama administration official was substantive enough to warrant her recusal.

Back in July, some 49 members of Congress signed a letter asking DOJ to produce certain documents on then-Solicitor General Kagan's involvement with the ObamaCare case. Four months later the Justice Department wrote back declining to produce the documents. In that letter, Assistant Attorney General Ronald Weich explained that the department has "grave concerns about the prospect of a congressional investigation into the pre-confirmation activities of a sitting Supreme Court Justice." Justice Kagan, he added, had addressed the issue of her ObamaCare involvement during her confirmation hearings.

In a letter to U.S. Attorney General Eric Holder on Friday, GOP Sen. Lamar Smith noted that in rejecting the request for documents, the Justice Department "did not assert any legal privilege to support the decision but instead concluded it would be 'unseemly' to comply with my request." If the Justice Department does intend to assert a legal privilege, he added, he'd like to be informed of the basis for it by Friday.

According to the rules for federal recusal, judges who previously served in other government positions, as Justice Kagan did, should bow out of cases if they served as "counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy," or if the judge's "impartiality might reasonably be questioned."

DOJ doesn't have a legal leg to stand on and they know it. They are stonewalling the request because there is little doubt that Kagan's activities as SG far exceeded the threshold for recusal.

This is crucial. If Kagan doesn't vote, and 4 to 4 tie resulted, the vote would uphold the decision of a lower court judge that Obamacare's individual mandate is unconstitutional. Obviously, Kagan can count noses on the court too which is why she will refuse to recuse herself.

http://www.americanthinker.com/blog/2011/11/doj_refuses_to_release_kagan_obamacare_documents.html