Before the Supreme Court adjourns for the summer, it will decide whether to accept the Justice Department’s surprising endorsement of Germany’s claims in a case involving a stupendously valuable medieval silver collection. The collection, worth a quarter of a billion dollars by conservative estimates, is known as the “Welfenschatz,” or the “Guelph Treasure,” made famous in the movie “The Monuments Men.” The Third Reich announced in June 1935 that it had “bought” the treasure from Jewish owners living in Germany. Five months later, Hermann Göring presented it to Adolf Hitler as a “surprise gift.” Germany has proudly displayed the collection in its public museums ever since, pronouncing it a “national treasure.” And now it callously dismisses the claims of its Jewish owners’ heirs.
A German government agency grandly titled the Advisory Commission on the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property, ruled in 2014 that the Nazis’ purchase of the Welfenschatz was “a voluntary, fair-market transaction.” The purchase price was, according to the owners’ heirs, “barely 35 percent of its market value. The commission has been applauded because it has returned far less valuable works of art to descendants of Jewish owners. It decided, however, that the Welfenschatz could remain in the Berlin museum as government-owned treasure because — contrary to common knowledge of everyone remotely familiar with Nazi persecution of Germany’s Jews — the 1935 transaction was “not a compulsory sale due to persecution.” Left with no recourse under German law, three living heirs sued Germany in federal court in Washington, D.C.
In March 2017, a federal district judge rejected Germany’s legal argument that it was immune under American law. Rather than proceed with a trial, Germany invoked its legal right to an “interlocutory” appeal, claiming that the treasure’s owners had been German citizens whose property could legally be expropriated under international law by their own government. Three experienced appellate judges rejected Germany’s contention in July 2018. They ruled that expropriation by a government of its own citizens’ property is not internationally legitimate if the expropriation is part of a government’s program of genocide. The judges did not address an additional compelling fact that the heirs had been reserving for trial: Because Nazi Germany had effectively outlawed its Jews by 1935, the owners of the Welfenschatz were truly no longer German “citizens.”
Germany asked the full court of appeals to reconsider that decision en banc, or as a full panel. The Justice and State Departments suddenly appeared on the scene in September 2018 with a friend-of-the-court brief urging the court’s 11 active judges to reconsider the decision of the panel of three. The brief claimed that the district judge could refuse to hear the heirs’ claim on grounds of “international comity” — because the lawsuit “would be at odds with the foreign policy interests of the United States.” Nine of the court of appeals’ active judges — those appointed by Presidents Bill Clinton, Barack Obama and George W. Bush — voted to deny rehearing.
So Germany took its case to the Supreme Court. In September 2019, Germany’s lawyers filed a 40-page petition asking the justices to decide whether international law authorized Germany’s “taking property from its own national within its own borders” and whether “international comity” should be invoked. The case remained under the radar with no amicus curiae briefs invited. Confronted with more than 125 pages of detailed legal argument and counterargument in six briefs of the parties, the justices in January turned, as they often do, to the Justice Department’s solicitor general for advice on whether to put the case down for full written briefs and oral argument.
The Justice Department’s 23-page amicus curiae brief was filed on May 26. It unequivocally subscribed to Germany’s legal position on both legal issues and urged the justices to grant certiorari and set the case for briefing and oral argument when the court returns from its summer recess.
No brief cited Jarndyce v. Jarndyce, the fictional never-ending case in Charles Dickens’s “Bleak House,” but it would have been appropriate: More than 40 months ago, an American trial judge ruled that three heirs of Jews several generations removed from the owners whose property was extorted 85 years ago may proceed with a trial to prove their case. The Justice Department, however, obviously at Germany’s bidding, is seeking to delay a trial for at least another year to have the Supreme Court rule on a legal question that may no longer be relevant after a trial. The plaintiffs will surely prove at trial that their Jewish great-grandparents, whose lives were saved only because they fled Germany, were no longer German “nationals” in 1935.
The Supreme Court frequently turns down a controversy if it is brought there before final judgment. The court famously did that when the male-only admissions policy of the Virginia Military Institute was challenged before trial in 1993. The legal issue was still in the case three years later, after trial and final judgment. The court agreed to hear it in 1996 and issued a decision resolving the same legal question that had been presented and deferred in 1993.
The justices may be tempted at their final conference, on June 25, to postpone a decision on the solicitor general’s recommendation and the technical legal analyses in the briefs until October, when they return from their summer recess. That will delay the trial by an additional three months even if the justices ultimately agree, as they should, with the judgment of nine experienced appellate judges who voted a year ago to deny rehearing en banc and allow the trial to proceed.
The justices can’t really know what is behind the solicitor general’s sudden alliance with Germany. The government’s brief makes refined legal arguments on esoteric issues that are fodder for advanced law-school courses, but there also is surely much hidden in confidential State Department cables inaccessible to the justices that would reveal the true motivation for the solicitor general’s brief.
For the heirs to the treasure’s Jewish owners, however, only two words from the court in its list of orders to be published Monday following the June 25 conference will do justice: “Certiorari denied.”