Did Anthony Kennedy just reveal the outcome in King v. Burwell?

That's the pending case about whether there can be subsidies on the health insurance exchanges set up in the states by the federal government. On Monday, Justice Kennedy, testifying before a House committee on the court�s budget, said:

It is not novel or new for justices to be concerned that they are making so many decisions that affect a democracy. And we think a responsible, efficient, responsive legislative and executive branch in the political system will alleviate some of that pressure. We routinely decide cases involving federal statutes, and we say, �Well, if this is wrong, the Congress will fix it.� But then we hear that Congress can�t pass the bill one way or the other, that there�s gridlock. And some people say, �Well that should affect the way we interpret the statutes.� That seems to me a wrong proposition. We have to assume that we have three fully functioning branches of the government, that are committed to proceed in good faith and with good will toward one another to resolve the problems of this republic.

That is, Justice Kennedy clearly and soundly rejected the argument that the inability of Congress to fix a problem should not keep the Court from deciding that there is a problem with a statute that it is the role of Congress, not the courts, to fix.

When this problem came up at oral argument, Justice Scalia said something that � as I explained here � some people thought was amusingly out of touch:

What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the �� you know, the bankruptcy court decision? 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 Solicitor General drew a laugh with the response "Well, this Congress?"

This Congress can't (or won't) fix it, so that was supposed to be a reason why the Supreme Court should fix the statute for them. In Monday's testimony, Anthony Kennedy called that "a wrong proposition." It's not the Court's role to perceive or predict gridlock. The Court must "assume" a "fully functioning" Congress. That is, the Court's approach to statutory interpretation � its idea of where the judicial role ends and when a problem with a statute needs a legislative solution � remains the same. The dysfunction of Congress doesn't change the function of the judicial branch, and Congress's inability to rewrite statutes does not give rise to an otherwise nonexistent judicial power to rewrite statutes.

Justice Kennedy is standing tough on separation of powers. Get ready!

Now, Kennedy could still find a way to use his idea of proper interpretation and still reach the result the government wants, and the difficulty of a congressional fix could affect the decision even if that's a dirty little secret not fit to mention in the written opinion. And, of course, as in the last Obamacare case, the 5th vote for the government could come from Chief Justice John Roberts.

So to answer the question in the post title: It's impossible to give a yes. But Kennedy revealed something that weighs against victory for the government.