U.S. Supreme Court

Comments by Ginsburg, Kennedy lead prognosticators to predict votes on gay marriage, health law

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Prognosticators looking for clues on the Supreme Court’s upcoming decisions on gay marriage and the Affordable Care Act are interpreting the meaning of justices’ comments outside of court. The New York Times has a story on the reading being given to recent comments by Justice Ruth Bader Ginsburg and Justice Anthony M. Kennedy.

In a speech at the American Constitution Society on Saturday, Ginsburg spoke about society’s increasing acceptance of the gay rights movement after gays came out of the closet. “They are people we know and we love and we respect, and they are part of us,” she said.

The comments, the Times says, “were not the words of a woman whose court was about to deal the gay rights movement a devastating setback when it issues its decision in the coming weeks on whether there is a constitutional right to same-sex marriage.” The pending case is Obergefell v. Hodges.

Meanwhile, a comment by Justice Anthony M. Kennedy at a congressional budget hearing after Supreme Court arguments on the Affordable Care Act led observers to conclude he won’t join with liberals to read the law in a way that allows tax subsidies for lower-income people in states that use the federal, rather than their own, health exchanges. If that’s true, Chief Justice John G. Roberts Jr. appears to be the only possible swing vote.

At issue in King v. Burwell is a provision of the health-care law allowing subsidies for people participating in exchanges “established by the state.” Supporters of the law say the phrase should allow subsidies in all states when read in context of the entire law; challengers say the phrase nixes subsidies in states with federal exchanges.

At the budget hearing, Kennedy made this comment: “We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it.’ “

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