WASHINGTON, DC — The Voting Rights Act did not have a very good day today. Chief Justice John Roberts suggested that a key provision of the law is rooted in the idea that “citizens in the South are more racist than citizens in the North.” Justice Antonin Scalia accomplished the unusual task of making Roberts look like a moderate by labeling the law a “perpetuation of racial entitlement.” Justice Anthony Kennedy, whose undeserved reputation as a moderate leads Court-watchers to pay particularly close attention to his questions, compared a landmark voting rights provision to the Marshall Plan as an example of a good idea that has now run its course.

Nothing, of course, is certain after an oral argument. Arguments in the Affordable Care Act case did not go well for the law or the Constitution, but Roberts ultimately blinked and voted to uphold the lion’s share of the law. When the same provision of the Voting Right Act — the provision requiring some parts of the country to “pre-clear” new voting laws with the Justice Department or a federal court before they take effect — was before the justices four years ago, that argument did not go very well either. Yet the justices ultimately upheld the law, albeit under circumstances suggesting another shoe would drop soon.

Though the shoe seems likely to drop this term, the four Democratic appointees made it clear they would not allow it to fall lightly. Justice Sonia Sotomayor was a star today, demonstrating a masterful understanding of the record and of the history of voter suppression in the South. When Scalia uttered his offensive claim that the law is a racial entitlement program, Sotomayor placed the lawyer challenging voting rights in the uncomfortable position of having to explain whether he agreed or disagreed with Scalia. With an assist from Justice Elena Kagan, Sotomayor pointed out that the plaintiff in this case, Shelby County, Alabama, “may be the wrong party bringing this” because of their dismal past record on voting rights. Alabama as a whole ranks as one of the worst offenders of federal voting rights laws in the country, and thus, as Kagan pointed out, should be subject to additional review of its voting laws “under any formula that Congress could devise.”

Sotomayor also asked the best question of the morning: why should Shelby County be allowed to bring this lawsuit as what is known as a “facial challenge,” instead of a much more limited “as-applied” challenge. A facial challenge is a broad lawsuit claiming that a law must utterly cease to exist and can never be applied to anyone. As Sotomayor pointed out, they are also disfavored under current law (or, a least, that Supreme Court likes to say they are disfavored). Generally, the Supreme Court claims to prefer narrower “as-applied” challenges that claim a law is invalid with respect to a specific plaintiff, but that it may still lawfully be applied to many other parties.

When individual voters bring lawsuits claiming disenfranchisement, the Roberts Court has wielded this distinction between facial and as-applied challenges to devastating effect. Most significantly, in Crawford v. Marion County Election Board, a plurality of the Court established that challenges to voter ID, a common voter suppression law, can only be brought on an as-applied basis. The upside of this is that each voter who feels they may be disenfranchised by the law has to hire a lawyer, go to court, and sue for the right to vote. And if they win, their victory applies only to them, not to the potentially hundreds of thousands of other voters who could be disenfranchised by voter ID.

What’s good for the goose should be good for the gander. If a voter disenfranchisement scheme that is popular with conservatives can only be subject to narrow, plaintiff-specific challenges, than the same rule should apply when a landmark voting rights law is challenged by conservatives. There was little doubt after oral argument today, however, that at least four of the Court’s conservatives do not see it that way.

The thin ray of hope is Justice Kennedy. Although Kennedy’s comments were largely hostile to the law, he did at one point join into the more progressive justices’ questions about whether Shelby County can try to destroy this law entirely — “if you would be covered under any formula, why are you injured under this one?” Kennedy asked the lawyer for Shelby County at one point. Suggesting either that he could ultimately agree with Sotomayor, or at least that he does not think that Shelby County is the right plaintiff to bring this case.

Nevertheless, if Kennedy does not agree with Sotomayor — or at least to put off the fate of the law until a future date — it will mean that there is one rule that applies to individual voters, and another, more favorable rule that applies to people who oppose voting rights.

Jefferson Beauregard Sessions knows something about what it means to be unfit for the federal bench. In 1986, the Senate Judiciary Committee rejected Session’s nomination to a federal judgeship in Alabama after a Justice Department attorney revealed that Sessions called the NAACP and the ACLU “un-American” and “Communist-inspired.” Unfortunately, rather than gaining some humility from this incident, the now-Sen. Sessions seems to be finding questionably qualified nominees under every rock he can lift:

Sessions was one of [Justice Elena] Kagan’s toughest critics on the Senate Judiciary Committee when she was nominated by President Obama in 2010. Last week, he revived his complaints about her when he became one of only two committee members to vote against Maine lawyer William J. Kayatta Jr., whom Obama nominated to the U.S. Court of Appeals for the 1st Circuit.

Kayatta’s transgression, according to Sessions, is that he was the lead investigator for the American Bar Association panel that gave nominee Kagan its highest rating — “Unanimous Well-Qualified.”

Given that Kagan had never been a judge and had little experience in private practice, Sessions said, such a rating “was not only unsupported by the record but, in my opinion, the product of political bias.”

For the record, Justice Kagan was the sitting Solicitor General, a former Dean of the Harvard Law School, a former White House attorney and senior policy staffer and a former law clerk to Justice Thurgood Marshall when she was nominated to the Supreme Court. The idea that she wasn’t well qualified for her current job is absurd.

Let’s be very clear about how Medicaid works. Medicaid offers each state a pool of money to provide health care to low income Americans. States can take or leave the money if they wish, but if they take the money, they agree to comply with certain conditions. If a state violates one of these conditions, the Secretary of Health and Human Services can dock their funds or potentially cut off funds entirely if the violation is sufficiently egregious.

This was the system in place when President Johnson signed Medicaid into law in 1965. It was the system in place after President Reagan expanded it to cover many new pregnant women and children in 1984. It was the system in place when Reagan expanded Medicaid again in 1985 and in 1988. And it was the system in place when new expansions were added in the 1990s. It each expansion, the bargain remained the same, states could accept the new conditions added by these expansions, or they could walk away from Medicaid. If they took the money and failed to comply with the conditions, they risked having their funding cut off.

In 2010, President Obama followed in his predecessors’ footsteps by expanding Medicaid through the Affordable Care Act. Yesterday afternoon, the Supreme Court flipped out. Although the five conservative justices’ objections to this most recent expansion often rested on other grounds, they almost always circled back to the same objection. The Affordable Care Act expands Medicaid, and the Secretary retains the exact same power she has had since 1965 to potentially cut off all of a state’s Medicaid funds if a state refuses to comply with any of the new conditions — so Obamacare could cause these states to lose all their Medicaid funds if they don’t comply with the new conditions.

Now, let’s be clear. If these justices are right that this Medicaid expansion is unconstitutional, than it also means that every single expansion since 1965 is also unconstitutional. That means stripping millions of the poorest and most vulnerable Americans of their only access to health care. Immediately.

Nor will the fallout be limited to Medicaid. As Justice Ginsburg pointed out, many universities received federal funding in 1972, when Congress enacted Title IX’s requirement that they must cease discrimination against women if they want to keep their funding. This too would be unconstitutional under the conservative justices’ theory. As would every other similar expansion to these education funds after they were first enacted.

It is rare that a single moment in a Supreme Court argument perfectly distills the difference in world view between the Court’s liberals and its conservatives, but such a moment occurred today. When Solicitor General Verrilli explained, correctly, that no Secretary has ever used their power to cut off a state’s Medicaid funding completely, Justice Alito expressed bafflement that any person could possess such an awesome power and refrain from using it. How, Alito wondered, could it be a “realistic possibility” that “we are not going to cut off your old funds, and just let that condition sit there?”

Justice Kagan soon weighed in with this answer:

[W]hen the Secretary withdraws funds, what the Secretary is doing is withdrawing funds from poor people’s health care, and that the Secretary is reluctant and loathed to take money away from poor people’s health care. And that that’s why these things are always worked out. It’s that the Secretary really doesn’t want to use this power, and so the Secretary sits down with the State and figures out a way for the Secretary not to use the power.

To Justice Alito, power is something that is to be wielded — just as he and his fellow conservatives appear dangerously close to casting the Constitution aside and striking down the Affordable Care Act simply because they can. To Justice Kagan, power is a sacred trust granted to our national leaders on the promise that they will use it lawfully and compassionately.

There are five of him, and only four of her.

Yesterday, the Supreme Court denied a request by the right-wing group Freedom Watch to hear oral arguments on whether Justice Elena Kagan should recuse herself from the Affordable Care Act litigation. Normally, ThinkProgress would not comment upon such a banal and obviously correct decision, except that it is worth highlighting Freedom Watch’s brief which, sadly, is indicative of the kind of penetrating legal reasoning that characterizes claims that Kagan may not hear this case. Here is just a brief sample:

Simply put, “We the People” are fed up and have already entered into what is in effect a Second American Revolution because judges and other government officials behave as if they are “above the law,” in effect nobility who can do as they please. . . . In short, the comments of Chief Justice Roberts [suggesting that Kagan does not need to recuse] are an affront to the high ethical standards of our Founding Fathers and amount to a subversion of our laws. They are disgraceful at best and at worst amount to obstruction of justice. They are the result of someone who became Chief Justice by first ingratiating himself to the “Washington establishment,” and now seeks to act as the Chief Justice not just of the Court, but of this same establishment – which for decades has pushed the nation to the brink of revolution by representing mostly its own interests, perpetuating and consolidating its power and selling out “We the People.” This is why in large part the nation is in a deep crisis; the majority of Americans have little if any respect for either the Supreme Court or our judiciary as a whole, notwithstanding their current similar disdain for the other two branches of government.

The situation is as bad as in 1776 when “We the People” declared independence from King George III and the British Crown. In the 236 years since the start of the first American Revolution, our current ruling class, which is not of the mettle of our Founding Fathers, – who pledged their sacred honor, fortunes and risked their lives to create a free nation – has come full circle. Today, the Supreme Court and the other two branches of government have assumed the role of a “royalty” – in some ways worse than even King George III – who feel free to ignore the legitimate interests and grievances of “We the People,” because they believe they are a “protected class” and above the law.

So, to be clear, the claim here is that far-right Chief Justice John Roberts is part of a giant conspiracy to help Kagan preserve President Obama’s chief legislative accomplishment, that this conspiracy is “in some ways worse” than monarchy, and that the American people are presently responding to it with a “Second American Revolution.” And this is what passes as legal argument among the Kagan recusal crowd. Sadly, this argument is only slightly better than the absurd claim that the Affordable Care Act itself is unconstitutional.

In a brief order this morning, the Supreme Court announced that it will hear Arizona’s appeal of a lower court decision blocking much of its unconstitutional anti-immigrant law SB 1070:

11-182 ARIZONA, ET AL. V. UNITED STATES

The petition for a writ of certiorari is granted. Justice Kagan took no part in the consideration or decision of this petition.

The most interesting news here isn’t the fact that the Court took this case — with so many unconstitutional laws popping up in states with anti-immigrant governments, the Supreme Court owes the nation some clarity on whether it will permit these laws to stand. Rather, the most interesting revelation here is that Justice Kagan will not hear this case.

As a practical matter, Kagan’s recusal is unlikely to change the outcome of this lawsuit — at least in the short term. If all five of the Court’s conservatives join together to overrule the long line of Supreme Court precedent establishing that Arizona’s law is unconstitutional, then Kagan will change little by simply adding another vote to the dissent. By contrast, if the Court splits evenly, then the Court’s rules establish that the lower court’s decision will stand — meaning that SB 1070 remains under a preliminary injunction.

One thing today’s order should put to rest, however, is the ridiculous suggestion that Justice Kagan needs to recuse from the Affordable Care Act litigation. Since joining the Court, Justice Kagan has scrupulously avoided sitting on any case she worked on while Solicitor General — even though this took her off of dozens of cases. Today’s order shows that Kagan is no less attentive to her ethical obligations even when they arise in high profile cases that carry a great deal of political baggage for the president that appointed her.

In an attempt to rig the Supreme Court and ensure that the Affordable Care Act will be struck down, high ranking members of the House and Senate GOP — including Senate Minority Leader Mitch McConnell (R-KY) and House Judiciary Chair Lamar Smith (R-TX) — have made a series of increasingly improbable claims that Justice Elena Kagan must recuse herself from the lawsuit challenging health reform. This morning, however, George W. Bush’s former Attorney General Michael Mukasey puts these ridiculous claims in their place:

The [law] that potentially relates to Justice Kagan requires disqualification “[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” “Proceeding” is defined to include all stages of the relevant litigation.

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.

Mukasey’s op-ed also rejects calls from several progressive lawmakers for Justice Thomas to recuse himself from this case, and Mukasey is right that there is not currently any public evidence justifying Thomas’ recusal. Despite the many, many ethical issues surrounding Justice Thomas, no one has yet uncovered evidence that Thomas’ family has a current financial stake in the outcome of this litigation — although Justice Thomas’ wife did once solicit lobbying clients that could potentially raise recusal issues for her husband.

Last week, Sen. Jeff Sessions (R-AL) became the latest GOP lawmaker to fabricate a reason why he thinks Justice Elena Kagan must recuse from the Affordable Care Act litigation. On Friday, Senate Republicans escalated these frivolous assaults on Kagan’s ethical integrity even further — sending a letter signed by Sens. Mitch McConnell (KY), John Kyl (AZ), and Chuck Grassley (IA), the #1 and #2 Republicans in the Senate and the Senate GOP’s top lawmaker on the Judiciary Committee, to Attorney General Eric Holder laying out the exceptionally weak case for Kagan’s recusal:

Federal law requires recusal from a case if a judicial officer of the United States “has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” 28 U.S.C. § 455(b)(3). In addition, a federal judge must disqualify herself from participating in a matter if her “impartiality might reasonably be questioned.” Id. at § 455(a). It appears that former Solicitor General Kagan’s participation in the Obama Administration’s defense of the PPACA may satisfy both requirements for recusal.

Then-Solicitor General Kagan acknowledged to the Senate Judiciary Committee last year that, in fact, she played a “role” in the Obama Administration’s defense of the PPACA, including attending “at least one meeting” that discussed the litigation. But she minimized her degree of involvement in the litigation, characterizing it as not “substantial.” Federal law, however, requires recusal if a government official participated in a matter that is the subject of litigation; it does not require the government official’s past participation in that same matter to be “substantial” (as determined by the self-same government official).

Unsurprisingly, the letter from McConnell and his colleagues misrepresents Kagan’s actions. Although Kagan did testify at her confirmation hearing that she was once present in a meeting where the existence of the Affordable Care Act litigation was brought up, she also testified under oath that she did no work whatsoever as an attorney on this litigation. Being in a meeting where a particular lawsuit is mentioned does not constitute participation “as counsel, adviser or material witness” on a case any more than attending a football game makes you a coach.

Moreover, even though a far-right group filed a Freedom of Information Act request seeking evidence that Kagan must recuse from the Affordable Care Act litigation, this request proved so fruitless that even the National Review’s Carrie Severino — a former clerk to Justice Clarence Thomas — was forced to conclude that the documents uncovered by this request contain no evidence requiring Justice Kagan’s recusal.

Yet, while McConnell’s letter is clearly just the latest chapter in a witchhunt seeking to discredit Kagan, it is nonetheless significant simply because McConnell’s name is on it. Previously, only a few senators such as Sessions and Sen. Mike Lee (R-UT) — both of whom represent the Senate’s far right fringe — had jumped onboard the anti-Kagan witchhunt. The fact that McConnell, Kyl, and Grassley are now lighting up torches and demanding that Kagan be burnt at the stake indicates that this witchhunt is the official position of the Senate GOP caucus.