On Monday, the Court heard oral arguments in the case of Howell v. Howell, Case No. 15-1031. I’ve written ad nauseum about this case and the pro bono amicus curiae brief submitted on behalf of Veterans of Foreign Wars and Operation Firing for Effect, but reviewed the transcript of the proceedings and wanted to share that with those interested.
No way to read the tea leaves; I’d say that Justices Ginsburg, Sotomayor and Kagan are likely in favor of Respondent (the former spouse).
Justice Breyer seems to understand the graft inherent in what the state courts are doing, so that it is a good sign. Justice Roberts too.
Breyer and Roberts gave the Solicitor General’s attorney a hard time on this, which it deserves for getting behind the states in this case.
The law office arguing supreme court cases for the federal government as a rule should be supporting (1) the Constitution, (2) Congressional acts passed pursuant thereto, and, last but certainly not least, (3) the veterans who have fought and died so the prior two instruments of governance in our Republic can operate as they should.
A majority of the justices did seem sensitive to two things brought up in the amicus curiae brief (1) this is a marital property case, which is totally different from spousal support and child support cases – this is really important to establish with the upcoming fight on the 38 USC 5301 front; and (2) the “graft” that state courts are engaging in by substituting “other money” in lieu of outright saying that they are taking restricted disability and special pay from the veterans, many of whom have only this money to survive on.
As Justice Roberts pressed the federal government’s lawyer (to laughter from the audience) during the oral argument, on page 42, allowing state courts to make an end run around the statute (which prohibits dividing waived military retirement pay, disability pay, and special compensation) by substituting in the veterans’ “other money” for the loss by the former spouse of his or her share is the kind of thing that gives the law (and I would add lawyers) “a bad name”!
Aptly describing it as making the statute little more than a “charade”, Justice Roberts pressed the government’s attorney to rationalize the state courts’ actions, which she was unable to do.
It should be noted there is a solid split of authority on this issue, with some state courts, with widely divergent political backgrounds, think Vermont and Mississippi, have correctly ruled in favor of the veterans and have held that state courts are forbidden from doing indirectly what they cannot do directly.