Both before and during World War II, the Nazi government obtained vast quantities of Jewish-owned art and artifacts – mostly by outright expropriation, sometimes by coerced sale at a deep discount. Today, 77 years after the end of the war, heirs of the original owners are still seeking to recover wrongfully acquired artworks, by informal negotiation if possible, otherwise by lawsuits. Two such cases were decided by the U.S. Supreme Court in 2021 and 2022. The first case was decided in favor of the current holder of the artworks (Germany) against the heirs, the second in favor of the heirs against the current holder (Spain). Neither case, however, rendered final judgment for either party; and in both cases, remarkably, the opinions (by Chief Justice Roberts and Justice Kagan, respectively) were unanimous.
These lawsuits were filed in federal court under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §1602 et seq. This statute provides that foreign nations are presumptively immune from the jurisdiction of American courts, subject to several specific exceptions – one of which, generally referred to as the expropriation exception, denies immunity in any case “in which rights in property taken in violation of international law are in issue.” 28 U.S.C. §1605(a)(3).
In Federal Republic of Germany v. Phipp, https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf (No. 19-351, 2/3/21), the question presented was whether a country’s taking of property from its own nationals falls within the expropriation exception. Here is Chief Justice Roberts’ statement of the case:
This case concerns several dozen medieval relics and devotional objects known as the Welfenschatz. The treasure (“schatz”) of the German Welf dynasty, the pieces date back to the early days of the Holy Roman Empire and occupy a unique position in German history and culture. The collection was assembled within Germany’s Brunswick Cathedral over the course of several centuries….
During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick. By 1931, the consortium had sold about half of the collection’s pieces to museums and individuals in Europe and the United States….
Conditions facing the consortium changed dramatically after the collapse of the German economy and the rise of the Nazi government. After ascending to power, Hermann Goering – Adolf Hitler’s deputy and the Prime Minister of Prussia – became interested in the remainder of the Welfenschatz. The complaint alleges that he employed a combination of political persecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935 for approximately one-third of their value….
Respondents [plaintiffs] are two United States citizens and a citizen of the United Kingdom who trace their lineages back to the three members of the consortium….
Proceedings in the courts below and the Supreme Court’s decision are admirably summarized by the invaluable SCOTUSblog at https://www.scotusblog.com/2021/02/jurisdictional-win-for-germany-in-lawsuit-seeking-to-recover-art-taken-by-nazis/:
…The lower courts agreed with the heirs that [the expropriation] exception applied to their case. The U.S. Court of Appeals for the District of Columbia Circuit concluded that although a government’s confiscation of its own citizens’ property does not violate the international law of takings, the case still fell within the exception because the heirs contend that the consortium was forced to sell the art at a low price as part of the Nazi genocide, which was itself a violation of international law for purposes of the exception.
Roberts rejected the heirs’ (and the D.C. Circuit’s) argument that the expropriation exception applied because the forced sale of the Welfenschatz violated the ban on genocide. When the FSIA was enacted in 1976, Roberts reasoned, it was “clear” that a taking of property violated international law only when a state took a noncitizen’s property. And more broadly, Roberts observed, the exception “places repeated emphasis on property and property-related rights, while injuries and acts we might associate with genocide are notably lacking.”
Roberts found support for Germany’s interpretation in other parts of the FSIA as well. When Congress wanted to allow lawsuits in U.S. courts against foreign countries for injuries from human rights violations, “it did so explicitly and with precision,” Roberts suggested. But if the heirs were correct, Roberts continued, plaintiffs could sidestep the limits that Congress had imposed on such lawsuits by relying on the expropriation exception.
Nevertheless, this ruling did not sound the death knell for the plaintiff’s case. “Around the time of the Welfenschatz sale, the Nazi government stripped German Jews of citizenship. If the art dealers weren't German citizens at the time of the sale, then the sale can't be construed as a purely domestic issue beyond the scope of international law.” https://freebeacon.com/courts/germany-prevails-at-supreme-court-in-dispute-over-jewish-art-extorted-by-nazis/. Given the limited question presented by Germany’s petition for certiorari, the Chief Justice concluded his opinion by emphasizing that “we [do not] consider an alternative argument noted by the heirs: that the sale of the Welfenschatz is not subject to the domestic takings rule because the consortium members were not German nationals at the time of the transaction…. The Court of Appeals should direct the District Court to consider this argument, including whether it was adequately preserved below.”
In the Cassirer v. Thyssen-Bornemisza Collection Foundation, https://www.supremecourt.gov/opinions/21pdf/20-1566_l5gm.pdf (No. 20-1566, 4/21/2022), the question presented was “what choice-of-law rule the court should use to determine the applicable substantive law.” Here is Justice Kagan’s statement of the case and the proceedings below (citations omitted):
Although the legal issue before us is prosaic, the case’s subject matter and background are anything but. At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain…. Pissarro’s agent sold the painting in 1900 to Paul Cassirer, a member of a prominent German Jewish family owning an art gallery and publishing house. Some quarter century later, Lilly Cassirer inherited the painting and displayed it in her Berlin home…. But in 1933, the Nazis came to power. After years of intensifying persecution of German Jews, Lilly decided in 1939 that she had to do anything necessary to escape the country. To obtain an exit visa to England, where her grandson Claude Cassirer had already relocated, she surrendered the painting to the Nazis. The underlying question in this case – which this opinion will not resolve – is whether the Cassirer family can get the painting back.
…Like the Cassirers, the painting had also arrived in the United States after the war, and sat in a private collection [until] 1976. In that year, the Baron Hans Heinrich Thyssen-Bornemisza…purchased the painting and brought it back to Europe. Rue Saint-Honoré hung at his residence in Switzerland until the early 1990s. At that time, the Baron sold much of his art collection, including Rue Saint-Honoré, to an entity the Kingdom of Spain created and controlled, called the Thyssen-Bornemisza Collection Foundation. [T]he Spanish Government provided the Foundation with a palace in Madrid to serve as a museum for the collection. The museum, as museums do, published a catalogue of its holdings. An acquaintance of Claude’s saw the catalogue and made the connection, telling him in 1999 where Rue Saint-Honoré was now located. (Lilly had by then long since died, with Claude as her sole heir.)
After informal efforts to recover the painting failed, Claude sued the Foundation in federal court…. At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception. [Citations omitted.] That determination, which is no longer at issue, meant that the suit could go forward. (Claude, though, would not live to see anything further; he passed away in 2010, and his heirs became the plaintiffs.)
But go forward pursuant to what law? The courts had to decide whose property law (Spain’s? California’s?) should govern the suit, and thus determine the painting’s rightful owner. Resolving that question required application of a choice-of-law rule – a means of selecting which jurisdiction’s law governs the determination of liability. Yet there another issue lurked. For the parties contested which choice-of-law rule should apply – serving up, so to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option. That federal choice-of-law rule, they further held, commanded the use of Spanish (not Californian) property law to resolve the ownership issue. Finally, the courts below determined after a trial that under Spanish law the Foundation was the rightful owner, because it purchased Rue Saint-Honoré without knowing the painting was stolen and had held it long enough to gain title through possession.
The Cassirers sought our review, limited to a single issue: whether a court in an FSIA case raising non-federal claims (relating to property, torts, contracts, and so forth) should apply the forum State’s choice-of-law rule, or instead use a federal one. We granted certiorari, because that question has generated a split in the Courts of Appeals. The Ninth Circuit stands alone in using a federal choice-of-law rule to pick the applicable substantive law. All other Courts of Appeals to have addressed the issue apply the choice-of-law rule of the forum State. We agree with that more common approach, and now vacate the judgment below.
I again refer you to SCOTUSblog for a summary of the reasoning underlying the Court’s decision, https://www.scotusblog.com/2022/04/family-seeking-to-recover-nazi-stolen-art-notches-small-victory-but-still-might-not-get-the-painting-back/. (Though I must say I disagree with the author’s pessimistic view of the heirs’ probability of ultimate success.) The final paragraph is particularly worth noting: “Aside from resolving the ‘prosaic’ legal question, the case is most notable for its unanimity, a rare occurrence in cases involving either choice-of-law issues or questions about federal common law. And it further cements Kagan’s reputation as the most careful proceduralist of the justices, as well as one of the court’s best writers.” An interesting analysis of unanimous vs. non-unanimous Supreme Court decisions is at https://www.scotusblog.com/2019/02/empirical-scotus-amid-record-breaking-consensus-the-justices-divisions-still-run-deep/.
