The Court is due to consider seven pending cert petitions on the issue at its conference on September 29. Given her recent comments that the Court would not “duck” the issue of same-sex marriage, it had seemed likely that she would be among those on the Court supporting review now. She is only one vote, of course: four of the remaining eight Justices could still opt to take one or more of the petitions at the September 29 or a subsequent conference.
Justice Ginsburg had multiple audiences for these comments: the students and faculty assembled before her, of course, but also the Sixth Circuit and her colleagues. If the Sixth Circuit (or another one, like the Fifth) rejects the same-sex marriage claim, as seemed likely at oral argument, there can be no doubt the Court will hear the matter this year. If the Sixth Circuit rules for same-sex marriage or remains silent, on the other hand, the Court might just wait a bit longer.