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Did Justice Kennedy offer a clue to the Supreme Court's pending decision?


No one can read the U.S. Supreme Court justices' minds, so everyone in health care is parsing their words for signs of how they'll vote in King v. Burwell.

Justice Anthony Kennedy, a potential swing vote in the case, set bloggers abuzz and tweeters a-twitter when he told lawmakers Monday that Supreme Court justices shouldn't take congressional gridlock into account when making decisions.

A ruling against the government in the case could wipe out federal insurance premium subsidies for millions of Americans unless Congress intervenes.

“We routinely decide cases involving federal statutes and we say, 'Well, if this is wrong the Congress will fix it,' ” Justice Kennedy told a House Appropriations Subcommittee during a hearing on the court's 2016 budget request. “But then we hear Congress can't pass a bill one way or the other, that there's gridlock and some people say that should affect the way we interpret the statutes. That seems to me a wrong proposition.”

The comment led some to speculate that Kennedy intends to side with the challengers in the case, concluding that the language of the health care law only provides for premium subsidies in states that established their own exchanges. That would eliminate the assistance in as many as 37 states (depending how the court defines a state exchange).

Josh Blackman, an assistant professor at the South Texas College of Law, wrote in his blog Monday that Justice Kennedy's statements do “not bode well for the government.”

And Eric Segall, a law professor at Georgia State University, tweeted a congratulations after the statement to Jonathan Adler, a law professor at Case Western University and a key influence behind the legal argument against the subsidies in King v. Burwell.

But others, including Mr. Adler, didn't seem to consider Justice Kennedy's remarks particularly revealing.

“There is nothing new in that statement,” Mr. Adler tweeted back to Mr. Segall.

Tim Jost, a law professor at Washington and Lee University and a prominent supporter of the health care law, also said he doesn't think Justice Kennedy's words mean much.

“If the court concludes that the statute unambiguously prohibits federal exchanges from granting premium tax credits,” he said, “it won't make any difference what the court believes about Congress.”

Lisa Schencker writes for Modern Healthcare, a sister publication of Business Insurance.