And so it was fitting, perhaps, that the Supreme Court would spend one of the year’s final days weighing this country’s right to sit in judgment of other nations’ human rights violations.
The issue in Germany v. Philipp is deceptively technical: whether the Foreign Sovereign Immunities Act (FSIA) of 1976 guarantees foreign individuals the right to sue foreign governments — ordinarily protected from such litigation — in a U.S. court for taking property pursuant to violating international human rights law.
Morally, though, the case is hardly technical at all, given that the systematic human rights violation in question was genocide: the Holocaust. The plaintiffs seek justice from Germany for the Nazis’ allegedly pressuring their ancestors, German Jewish art dealers, to sell valuable medieval religious objects known as the Guelph Treasure to an agent for Hermann Goering, Adolf Hitler’s right-hand man, in 1935.
Their claim having been denied by a special German commission, which Berlin established to arbitrate such claims at the United States’ urging, the heirs — two Americans and a British subject — now want to sue in federal court.
The German government argues that, because of circumstances at the time, the Nazis actually negotiated and paid a fair price for the artworks, and that, in any case, FSIA does not cover allegedly unlawful seizures entirely within a single country and among its own citizens, as opposed to say, confiscation of a foreign-owned factory.
It is a noteworthy defense for a country that prides itself, justifiably, on dealing with, and compensating for, its Nazi past. The government of Chancellor Angela Merkel might not have argued it if the artwork, currently displayed in a Berlin museum, were of lesser cultural importance.
A companion case, Hungary v. Simon, involves 14 Hungarian-born Holocaust survivors seeking restitution for possessions taken from them by collaborationist regime officials as they were forced aboard trains to concentration camps in 1944.
Merkel’s government finds itself in rare alignment with the illiberal government of Viktor Orban of Hungary and with the Trump administration, which argued in the Supreme Court that victory for the plaintiffs would set a disruptive precedent for U.S. relations with other countries.
It’s understandable that the executive branch might want to keep control over sensitive diplomatic matters, though perhaps less understandable when the alleged damages relate to the Holocaust. As plaintiffs’ lawyers argued, the Supreme Court could construe FSIA narrowly, to permit Holocaust claims — dwindling with each passing day, in any case — but few others.
What worried Justice Stephen G. Breyer during oral arguments on Dec. 7 was not only the foreign-policy consequences of granting U.S. jurisdiction over such cases, but what could happen if other countries turned the tables and opened their courts to charges of dispossession related to officially sanctioned injustices in the United States.
“You can have systematic discrimination. You can have cruel and inhuman degrading treatment,” Breyer observed. “What about Japanese internment, which involved 30,000 people in World War II who were not American citizens but were of Japanese origin? And the first time we’d sue China . . . you know, what do you think they’re going to say about the [Chinese] railroad workers who came in the 19th century?”
Breyer expressed sympathy for dealing with retrospective justice “practically,” through negotiated settlements within nations, such as the one that South Africa implemented after apartheid.
Hungary’s lawyer, Gregory Silbert, warned that other countries will inevitably respond in kind if the United States opens its courts to more claims originating overseas. Despite the “unfortunate fact” of historical injustice in the United States, Silbert said, “we can all agree that the remedies for the worst injustices committed by the United States in the United States should not be decided by a Hungarian judge applying Hungarian law from a courtroom in Budapest.”
Of course, this dilemma could have been avoided by comprehensively addressing those injustices long ago, or not committing them to begin with.
The Supreme Court may well dispose of these cases on narrow legal grounds, limiting their precedential impact and avoiding their more controversial implications, legal and moral.
The mere fact that the Supreme Court felt obligated to spend some of its time picturing the United States as the defendant in a historical reparations trial abroad, however, is further evidence that 2020 was anything but an ordinary year.