Argument evaluation: Many questions, few options on immunity in claims arising from Nazi-era artwork sale

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The Supreme Court heard orally on Monday in a dispute over a collection of medieval Christian art exhibited in a Berlin museum. The question before the judges in the Federal Republic of Germany against Philipp is whether the lawsuit filed in Washington, DC by the heirs of several German-Jewish art dealers who claim the art was forcibly sold to the Nazis can or should go forward at all . The judges had tough questions for both sides, and when the case closed after nearly 90 minutes of hearing, it was not clear how the judges would likely decide – a by-product of the format the court uses for distant arguments. in which every judiciary has a certain amount of time to question every lawyer.

The art at the center of the case is the Guelph Treasure, known in English as the Guelph Treasure. The dealers, who lived and worked in Germany during the 1920s and 1930s, formed a consortium in 1929 to purchase the collection, which included ornate crucifixes and portable altars. After the stock market crash of 1929, the consortium sold roughly half of the art, but wasn’t able to sell the other half until 1935, when it sold 42 of the 82 pieces in the collection to the Nazi-controlled state of Prussia for 4.25 million Reichsmarks the equivalent of $ 1.7 million in 1935. The heirs argue that the sale was forced and was well below market value, while the federal government believes that both the sale and the price were fair.

In their endeavor to regain art, which is now worth around a quarter of a billion dollars, the heirs first went to a commission specially created by Germany to convey claims from the Nazi era. When the commission ruled in favor of Germany, the heirs went before a federal court in the United States, arguing that the art violated international law.

The Foreign Sovereign Immunities Act creates several narrow exceptions to the general rule that foreign governments cannot be sued in US courts. In this case, it is one of those exceptions, known as the expropriation exception, which allows legal action against foreign governments when “property rights that violate international law are in question”. The question before the court is whether the exception applies to allegations that a foreign government has taken property from its own citizens within its own country.

Attorney Jonathan Freiman, who represented Germany, told the judges that when Congress added the reference to “rights to property that violates international law” in the FSIA, it only intended to refer to international revenue law referring to, which does not include cases where foreign lands take the property of their own citizens. However, several judges have resisted this argument, suggesting that the text of the exception is more general and may include property confiscation as part of a genocide in violation of international law. Chief Justice John Roberts was the first to address the possibility, followed by Judge Clarence Thomas, who asked Freiman to envision that there was a genocidal campaign going on that “involves an effort to get all property, including jewelry, art and art even take over the extraction of gold teeth. “Thomas wanted to know if this receipt would be subject to the expropriation exemption from sovereign immunity.

Freiman insisted that the question was the intent of Congress for the purposes of the FSIA and that the “gravamen” of what Thomas described was not a capture, but an act of genocide not covered by the FSIA exception.

Judge Sonia Sotomayor reiterated the argument, reminding Freiman that the court usually relies on the “simple meaning” of the words in the FSIA that refer to property taken “in violation of international law.” It seems clear, she said, that the seizure of property as part of a genocide campaign would be genocide (and therefore a violation of international law) even if property were taken away from a country’s own citizens. “So,” asked Sotomayor, “why don’t we follow the clear meaning of the statute?”

Justice Elena Kagan reiterated that point, telling Freiman that even if it was clear that Congress had the international law of revenue in mind when drafting the FSIA, the actual words it used were more general and to cover the situation in this case seem to be.

Judge Brett Kavanaugh quoted from Germany’s reply in which the country recognized that “it is literally possible to understand the exception as revenue that violates a principle of international law”. Why, he asked Freiman, “isn’t that the end of the case”?

Some judges also expressed concern about the impact of the German proposed rule on claimants who had been deprived of their citizenship. Judge Samuel Alito was the first to raise the issue, asking Freiman if the outcome would be any different if the art dealers were stripped of citizenship prior to the 1935 sale.

Freiman insisted in response that the art belonged to a consortium rather than the dealers themselves, but Thomas later returned to this point. Pointing out the difference in treatment between citizens and non-citizens, he noted that the latter could sue under the FSIA but the former could not, while questions about a denatured or stateless person remained open.

Although the judges did not seem particularly receptive to Germany’s argument about reading the FSIA’s expropriation exemption closely, they were also concerned about the lack of a restrictive principle for the plaintiffs’ interpretation.

Attorney Nicholas O’Donnell, who argued on behalf of the plaintiffs, insisted that the exception would only apply to cases where property was confiscated – thus excluding allegations of torture, for example. When asked by Thomas, O’Donnell replied that this wouldn’t even apply to all cases of genocide. Here, he noted, the Nazis took art as part of an effort to commit genocide, but the exception would not apply to a case where members of a group were killed and then their property taken.

Judge Stephen Breyer suggested that there could be “many violations” of international law relating to property. “Look what you open up,” he said to O’Donnell.

Justice Amy Coney Barrett was also skeptical. She told O’Donnell that it was very difficult to see how, for example, property taken from people in the process of enslavement wouldn’t also fall into that category. Where, she asked O’Donnell, are the limits?

The judges spent virtually no time on the second question they had agreed to examine: whether the principles of the “international community” allow a federal court to fail to resolve plaintiffs’ claims even when the court has jurisdiction. The judges spent nearly 90 minutes discussing this issue during a separate dispute on Monday in the Republic of Hungary against Simon, which also involved the seizure of property by Jews from the Nazi era. A decision in both cases is expected next year.

This article was originally published by Howe on the Court.

Posted in Germany against Philipp, Featured, Merits Cases

Recommended citation:
Amy Howe, argument analysis: Many questions, few solutions on immunity in claims from art sales during the Nazi era,
SCOTUSblog (December 7, 2020, 6:46 p.m.), https://www.scotusblog.com/2020/12/argument-analysis-many-questions-few-solutions-on-immunity-in-claims-arising-from – nazi-era-art-sale /