New York Times

WASHINGTON — Three years ago this week, Justice Ruth Bader Ginsburgchided the news media for “publishing a steady stream of rumors and fifth-hand accounts” predicting how the court would rule on a constitutional challenge to President Obama’s health care law.

“At the Supreme Court,” Justice Ginsburg said, quoting the journalist Joan Biskupic, “those who know don’t talk, and those who talk don’t know.”

But perhaps those who know do hint. Those same remarks, for instance, contained a playful clue.

“This term has been more than usually taxing,” she said in that speech at the American Constitution Society, a liberal legal group. Two weeks later, the Supreme Court upheld the heart of the health care law on a surprising ground — as an exercise of Congress’s power to impose taxes.

Justice Ginsburg was back at the American Constitution Society on Saturday, and this time she spoke at length about the progress of the gay rights movement. Things had begun to change quickly, she said, as gay men and lesbians came out of the closet.

“People looked around,” she said, “and it was my next-door neighbor, of whom I was very fond, my child’s best friend, even my child.”

“They are people we know and we love and we respect, and they are part of us,” she added. “Discrimination began to break down very rapidly once they no longer hid in a corner or in a closet.”

“The climate of the era,” she said, is “part of the explanation of why the gay rights movement has advanced to where it is today.”

Justice Ginsburg did not directly address the pending same-sex marriage case, Obergefell v. Hodges, No.14-556. But hers 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 court’s more conservative justices seem to be bracing for a loss. In a February dissent, Justice Clarence Thomas, joined by Justice Antonin Scalia, said the court’s failure to halt same-sex marriages in Alabama “may well be seen as a signal of the court’s intended resolution of that question.”

The court this month will also rule again on the fate of the health care law. Here the search for clues is harder, but that has not stopped people from trying to find them.

The new health care case, King v. Burwell, No.14-114, concerns a phrase in the law that may, depending on how it is interpreted, bar federal subsidies to help millions of people buy insurance. The Obama administration says the phrase, when read in the context of the rest of the law, allows the subsidies.

One hint, according to some, came in January at the argument of a housing discrimination case. Justice Scalia, of all people, seemed sympathetic to the administration’s general approach. “We try to make sense of the law as a whole,” he said.

That comment and other evidence, Cristian Farias wrote in The New Republic the next week, “points to Scalia as a decisive vote in whether federal subsidies for all Americans survive.”

In March, at the actual argument of the King case, Justice Scalia did not seem much taken by the administration’s position. Instead, he said Congress was free to fix the law if the law said something other than what had been intended.

“You really think Congress is just going to sit there while all of these disastrous consequences ensue?” Justice Scalia asked. “Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?”

The administration’s lawyer, Solicitor General Donald B. Verrilli Jr., all but rolled his eyes. “This Congress?” he asked, and the courtroom erupted in knowing laughter.

If the administration does not capture Justice Scalia’s vote, it will hope that either Chief Justice John G. Roberts Jr. or Justice Anthony M. Kennedy joins the court’s four more liberal members to uphold the subsidies.

But in a congressional budget hearing a few weeks after the argument, Justice Kennedy sounded like Justice Scalia.

“We routinely decide cases involving federal statutes and we say, ‘Well, if this is wrong, the Congress will fix it,’” he said.

The court, he said, should not let the state of Congress affect its decisions. “We have to assume that we have three fully functioning branches of the government,” he said.

Eric J. Segall, a law professor at Georgia State University, had this reactionon Twitter: “Justice Kennedy basically just announced how he will vote in King and news not good.”

If he is right, the fate of the law may rest with Chief Justice Roberts. The week before the argument in the King case, he joined an opinion from Justice Ginsburg. The case was a trifle that asked whether the destruction of a fish violated the Sarbanes-Oxley Act, a federal law mainly meant to combat financial crimes.

The court ruled for the fisherman based on what Justice Ginsburg called “the broader context of the statute as a whole.”

Noah Feldman, a law professor at Harvard, said this was notable.

“Reading the tea leaves — or maybe the fish entrails — it’s possible to get some clues about how the court will interpret” the health care law, Professor Feldman wrote in a column for Bloomberg View. It was telling, he said, that “Roberts was willing to join the liberals to read a statute according to context.”

Justice Ginsburg, who knows how the justices voted in the new health care case, dropped no hint on Saturday about how it would turn out. Or perhaps, as happened three years ago, she did and we all missed it.