Whether involving restitution for Nazi-looted artwork or liability for property stolen from families en route to the death camps, the Supreme Court appeared reluctant on Monday to involve the U.S. judiciary as an avenue for justice for victims of property crimes at the hands of the Nazis.
At the heart of a pair of court cases saturated with the agony of history, genocide and theft were more dry and technical issues of citizenship and whether foreign sovereign immunity should block the United States federal courts from hearing the disputes from Germany and Hungary at all.
Few and far between while parsing such technicalities, the justices nodded to the human plights underlying the litigation.
“If Jewish citizens of the Holocaust were deemed non-citizens, why should they have to exhaust remedies elsewhere?” Justice Neil Gorsuch sharply asked counsel for the Hungarian government at one point.
Similarly, Justice Samuel Alito grilled Germany’s lawyer about whether the Jewish people were “stripped of their citizenship” before being deprived of their property at the hands of Nazis.
But such moments were rare in a hearing more rife with references to the Foreign Sovereign Immunities Act (FSIA) than allusions to the 20th century’s most infamous crime against humanity. Here’s what the German government said in a reply brief about the Holocaust:
No brief could adequately recount the horrors of the Holocaust and the suffering that Germany inflicted during the Nazi era. Beginning in 1933, the German government systematically persecuted Jews and other groups, confiscating property and enacting discriminatory laws designed to impoverish and oppress them— and ultimately murdering millions. Nazi art seizures are an undeniable part of this history, undertaken both for internal political ends and to further the suffering of Jews and others. No one here disputes these facts, but they do not decide this case.
What does decide the case is the concept “foreign sovereign immunity,” which deserves a recap here.
Sovereign immunity prevents individuals from suing the federal government, except in some specific contexts which are allowed by statute. Just as most countries limit lawsuits against their own respective governments, most nations recognize the sovereignty of other nations within their own court systems.
Normally, United States federal courts are not permitted to hear any lawsuits against foreign nations. In 1976, President Gerald Ford signed the FSIA into law, although the concept of foreign sovereign immunity had been at work for many years prior to the enacting of the FSIA.
The FSIA carves out a few exceptions, such as when a foreign state has waived immunity, or when a foreign state engages in a commercial activity. The FSIA isn’t about the legal substance of any particular lawsuit, but rather, about creating a few narrow categories of cases which are deemed proper for adjudication in American federal courts.
The “expropriation exception.”
One major exception to foreign sovereign immunity is called “the expropriation exception”; this allows lawsuits in any case “in which rights in property taken in violation of international law are in issue” — as long as there is a nexus between the United States and the commercial activity in question. The current cases before the Supreme Court ask whether the expropriation exception should include cases in which foreign countries take property belonging to their own citizens’. Such an interpretation would be relatively new, and would be wider than U.S. courts have historically interpreted their jurisdictional limits
Here are the separate but closely-related cases the Supreme Court heard Monday:
Hungary v. Simon involves 14 Holocaust survivors, four of whom are naturalized American citizens. They are suing the Hungarian government and a railroad (which, at the time in question, was government-owned) for participating in the shipping Jewish people to death camps. In the lawsuit, they seek damages for confiscation of basic personal property (clothing, shelter, medicine, and more) by the government.
The German case, Germany v. Philipp, involves a collection of medieval Christian art known as the “Welfenschatz” (or, in English, the “Guelph Treasure”). In 1933, Nazi officials forced Jewish art dealers to sell the Welfenschatz to the Nazi-controlled state of Prussia, a transaction in which Hitler himself had some involvement. The heirs of those dealers, some of whom are American citizens, are now suing Germany to reclaim the collection, which is currently in a Berlin museum, and is reported to be worth $250 million.
The Supreme Court is not currently considering who wins, or what compensation would be due in the current cases. Rather, it is deciding whether the cases are properly heard in American courts at all — or whether they belong in Hungary and Germany respectively.
Both cases were approved by the D.C. Court of Appeals in 2018, on the basis that their connection to the Holocaust creates sufficient grounds to allow the cases to proceed under the FSIA. Now, the Supreme Court is reconsidering the D.C. Circuit’s decision on appeal.
Hungary is arguing that the U.S. doesn’t have a direct interest in the case, which primarily amounts to foreign conduct on foreign soil involving foreign individuals. None of this is to downplay the Hungarian position on the Holocaust generally; rather, the country argues that its responsibly to compensate the Jewish victims is of “profound historical and political importance” to the nation, and that responsibility rests solely within Hungary’s sovereignty.
During Monday’s oral arguments, the justices gave few specific signs as to how they would rule in the cases, but they did appear to be united on one front: apparent and extreme hesitancy to take up a dispute that involves a foreign nation. Each justice pressed litigants on the questionable appropriateness of the judiciary inserting itself into matters involving foreign sovereigns. Congress and the executive branch, suggested the Court in multiple questions, might be better suited to set boundaries of jurisdiction in matters with international consequences than are the courts. At one point, Justice Elena Kagan suggested that an argument that the judiciary should decide how to handle the difficult questions presented by the case was akin to asking the court to “do the dirty work” that might be better handled elsewhere.
The justices also suggested that legal considerations other than foreign sovereign immunity—such as forum non conveniens, or exhaustion of remedies—might render the case improperly before the court independently of foreign sovereign immunity. They questioned the attorneys on a multitude of procedural arguments, all of which suggested that it might be better for some other entity (Congress, the State Department) to decide whether this is really the type of case appropriately before an American tribunal.
In both cases, the concept of comity—the idea that nations will show courtesy to one another—was of central concern. The Court is left to grapple with the question of how exactly interpretation of the FSIA works in tandem with the general concept of comity.
Also critical to the specific cases before the court was their nature as property disputes. Is the taking of property part of genocide? Is it a separate-but-parallel atrocity committed in it? These are complex questions raised by the Court that may have significant impact on the overarching issue of jurisdiction.
Similarly nuanced are questions about the legal status of Jewish victims of the Holocaust. Were those people still German? Were they stateless? If they were stateless, when did they become so—when atrocities began, or when the law officially declared them so? While these questions might appear maddeningly tangential to the primary injustices of the Holocaust, they’re nevertheless important to questions about whether American courts have jurisdiction to impose liability. Analysis of foreign sovereign immunity and comity depends in large part on whether a claim is brought by foreign national against his own government or against a foreign one.
For the majority of both arguments, the justices remained quite calm. Emotions did rise to a peak in each case when the parties discussed the legalities of the nationalities of Jewish Holocaust victims.
An attorney for the heirs of Holocaust victims in the Germany v. Philipp case told Law&Crime that he was pleased that SCOTUS was highly engaged in the case.
“We were grateful for the opportunity to address the Court. The Justices were deeply engaged in the text of the law and the significance of how it will rule,” Nicholas O’Donnell said.
Sarah Harrington, an attorney representing families of Holocaust victims in Hungary v. Simon, had a similar response.
“Hungary promised in 1947 to fully compensate the people it victimized in the Holocaust. It has never even tried to make good on that promise. Congress has authorized U.S. courts to hear claims like my clients’ and even the Department of Justice has recognized that there is a moral imperative to provide justice to Holocaust survivors in their lifetime,” Harrington said in a statement to Law&Crime. “We are heartened that the Justices were so engaged with these important issues and hope for a positive outcome.”
You can listen to the full oral arguments in Hungary v. Simon here, and Germany v. Philipp here.
[image via Chip Somodevilla/Getty Images]
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