If it goes 6-3 Kagan will not be with the majority, at least not for your reason. Think about it. If she didn’t recuse herself from this process in the beginning, she won’t in the future. Because regardless of what side has the majority, it has no impact on the fact she as Solicitor General put the defense of Obamacare together and she IS violating the law by not recusing herself now. She is doing all this NOW when they probably DO NOT have the votes, she will not recuse if they can rule in favor of it. She wants to be able to vote for it.
If she didn’t recuse herself now, she won’t in the future. If she did they’d ask why she didn’t in the past and what’s changed? Nothing would have changed to cause her to recuse. Her SG past is enough to recuse herself NOW.
If she votes with the majority on a law that is going down anyhow, it will allow the Left to unleash a big gun attack against all of us for being “paranoid and delusional” when we called on her to recuse.