Marschner v. Marschner
No. 25-1349 · October Term 2026 · Federalism
Expected vote 6–3 for Marschner. Chance of a unanimous ruling 44%.
Before oral argument the model knows only the case's structure: the issue area, which way the lower court ruled, and each justice's record on both. That is not enough to separate cases, so every unargued case carries the petitioner's base rate. The transcript features arrive within days of argument and the number becomes a call.
The case
Roxane Marschner is suing her ex-husband, Richard Marschner, over an indemnification clause in their divorce settlement agreement concerning his military retirement pay. The North Dakota Supreme Court held that, despite the agreement, federal law preempts the enforcement of this indemnification. The Supreme Court must now decide if the Uniformed Services Former Spouses' Protection Act requires state courts to refuse to enforce such indemnification provisions in divorce settlement agreements.
- Does the USFSPA preempt state courts from enforcing indemnification clauses in divorce settlement agreements, even when the veteran agreed to the provision?
- How does the Court's prior ruling in Howell v. Howell apply when an indemnification agreement is part of a voluntary settlement rather than a court order?
- What is the scope of federal preemption under the USFSPA regarding the division of military retirement pay in state divorce proceedings?
AI brief written by gemini-2.5-flash from the questions presented and the Oyez facts on 2026-10-02. Commentary only; it is not an input to the model.
Question presented, as filed
In the Uniformed Services Former Spouses' Protection Act ("USFSPA"), Congress provided that a State may treat veterans' longevity-based retirement pay as divisible property in divorce. 10 U.S.C. § 1408(c). But Congress further provided that retirement pay that was waived to receive disability pay, as well as certain retirement pay received due to disability-related retirements, would be indivisible. 10 U.S.C. § 408(a)(4)(A)(ii), (iii). In Howell v. Howell , 581 U.S. 214 (2017), a divorced veteran waived a portion of his longevity-based retirement pay in order to receive disability pay, causing his ex- wife's share of his retirement pay to decrease. The divorce court ordered him to indemnify his ex-wife for that reduction. This Court held that the USFSPA preempted that indemnification order. See id . at 222. In this case, unlike in Howell , the parties agreed as part of their divorce settlement that the veteran would indemnify his ex-wife if her share of his retirement pay were reduced because he later waived his retirement pay to receive disability benefits or because he received disability-based retirement pay. Even though the veteran agreed to the indemnification provision at the time of the divorce, the North Dakota Supreme Court nonetheless held that, under Howell , enforcement of the indemnification provision was preempted. The question presented is: Does the USFSPA require state courts to refuse enforcement of indemnification provisions in divorce settlement agreements?
The nine
Each justice's predicted vote and the record behind it: how often they have voted for the petitioner overall, in Federalism cases, and when the lower court ruled conservative; and, once argued, how many questions they put to each side (the side a justice questions more tends to lose their vote). The note under each row is the AI brief's reading, commentary rather than model input.
| Justice | Predicted | Overall | This issue | Lower court conservative | At argument |
|---|---|---|---|---|---|
John G. Roberts Republican appointee · since OT2005 Chief Justice Roberts often emphasizes contractual agreements and the intent of the parties, which could weigh on the enforceability of the settlement. He joined the majority in Howell v. Howell, which found preemption for court-ordered indemnification. | 63% Marschner | 68% for the petitioner · 1,512 votes | 67% Federalism · 60 votes | 61% lower court conservative · 734 votes | not yet argued |
Clarence Thomas Republican appointee · since OT1991 Justice Thomas generally favors strict textualist interpretations of statutes and has often been skeptical of implied preemption, which could lead him to consider the explicit terms of the settlement agreement. He joined the majority in Howell v. Howell. | 57% Marschner | 59% for the petitioner · 2,801 votes | 63% Federalism · 139 votes | 43% lower court conservative · 1,365 votes | not yet argued |
Samuel A. Alito Republican appointee · since OT2005 Justice Alito often takes a pragmatic approach to statutory interpretation and has shown a willingness to consider the practical implications of preemption rulings. He joined the majority in Howell v. Howell. | 57% Marschner | 62% for the petitioner · 1,469 votes | 58% Federalism · 57 votes | 48% lower court conservative · 722 votes | not yet argued |
Sonia Sotomayor Democratic appointee · since OT2009 Justice Sotomayor often considers the impact of legal decisions on individuals and has shown an inclination to protect contractual rights when consistent with statutory language. She dissented in Howell v. Howell, arguing that the USFSPA did not preempt the state court's order. | 66% Marschner | 61% for the petitioner · 1,192 votes | 70% Federalism · 46 votes | 76% lower court conservative · 594 votes | not yet argued |
Elena Kagan Democratic appointee · since OT2010 Justice Kagan often focuses on statutory purpose and legislative intent, and she may consider whether Congress intended to override voluntary agreements in this context. She dissented in Howell v. Howell, emphasizing the importance of state family law. | 66% Marschner | 63% for the petitioner · 1,072 votes | 62% Federalism · 39 votes | 75% lower court conservative · 543 votes | not yet argued |
Neil M. Gorsuch Republican appointee · since OT2016 Justice Gorsuch is a textualist who often emphasizes the plain meaning of statutory language and has been a strong proponent of limiting federal preemption. He was not on the Court for Howell v. Howell. | 66% Marschner | 65% for the petitioner · 592 votes | 68% Federalism · 19 votes | 59% lower court conservative · 286 votes | not yet argued |
Brett M. Kavanaugh Republican appointee · since OT2018 Justice Kavanaugh often seeks to apply precedents consistently and may focus on distinguishing this case from Howell v. Howell based on the voluntary nature of the agreement. He was not on the Court for Howell v. Howell. | 63% Marschner | 69% for the petitioner · 498 votes | 78% Federalism · 18 votes | 62% lower court conservative · 244 votes | not yet argued |
Amy Coney Barrett Republican appointee · since OT2020 Justice Barrett often employs originalist and textualist methods, which could lead her to closely examine the language of the USFSPA regarding its preemptive scope. She was not on the Court for Howell v. Howell. | 63% Marschner | 66% for the petitioner · 360 votes | 56% Federalism · 9 votes | 60% lower court conservative · 178 votes | not yet argued |
Ketanji Brown Jackson Democratic appointee · since OT2022 Justice Jackson often considers the practical effects of legal interpretations and may be inclined to uphold state court authority in family law matters where federal law does not explicitly preempt. She was not on the Court for Howell v. Howell. | 68% Marschner | 59% for the petitioner · 244 votes | 80% Federalism · 5 votes | 80% lower court conservative · 127 votes | not yet argued |
Rates are each justice's own participation record in the Supreme Court Database, the same history the model trains on; a rate on fewer than five votes is not shown. The predicted vote is VotePredictor SCOTUS' per-justice probability from the served model, which also reads the bench-wide transcript signal and how long each side held the podium.
Every call this term, justice by justice · how the model is built and its record. Data as of 2026-10-02.