Supreme Court Math: Who Cares About Kagan?

Doug Mataconis at Outside the Beltway has produced a couple of good roundups on the Justice Thomas or Justice Kagan recusal questions surrounding the judicial review of Obamacare. I think that there's a much stronger case to be made for Kagan's recusal than Thomas', but I don't think it's worth us conservatives spending a lot of time arguing for her to remove herself. Why? Simple math says it is unlikely that Kagan's presence will alter the outcome.

Here's how I see it working out:

Definite NO Justices on Obamacare: Alito, Roberts, Scalia, Thomas
Definite YES Justices on Obamacare: Breyer, Ginsburg, Kagan, Sotomayor

That leaves Justice Kennedy. If he goes anti-Obamacare, it's a 5-4 decision we like, else a 4-5 we hate. If Kagan doesn't hear the case and Kennedy is a No, then it's a 5-3 decision we like and the only benefit is that it's a two vote margin and not one. If Kennedy is a Yes in that circumstance, it's 4-4 and Obamacare will be preserved just the same as if it was 4-5. Split courts leave the lower court decisions in force, which in this case makes for a bit of chaos because different district courts and Circuit Courts of Appeals have come to different conclusions.

If that math holds, I'll just point out that a Thomas recusal - however unlikely - would be a disaster. If it holds, it really doesn't matter if Kagan is sitting or not.