rying to rectify Holocaust atrocities committed in Germany and Hungary decades ago. As a general matter, the Foreign Sovereign Immunities Act protects foreign governments and their agencies from lawsuits in the United States. But there is an exception for cases "in which rights in property taken in violation of international law" are an issue.
Exactly what the law and the exception require, and whether a U.S. court has leeway to toss the suit for the sake of international relations, was at stake in the two cases, which the court heard by teleconference.
Lawyers for victims said their cases clearly fulfill Congress's intent.
"The Nazi government set out explicitly to destroy the German Jewish people by taking their property," said Nicholas O'Donnell, representing heirs of art dealers forced to sell to Nazi leader Hermann Goering.
"And Congress has specifically identified the Nazis' looting of art from the Jewish people as genocidal. This is not a new kind of human rights case. It's a property rights case."
And Sarah Harrington, representing Hungarian victims, said Congress did not intend for courts to abstain from cases under the principle of "international comity," which provides discretion about whether matters would be better resolved in the courts of the other sovereign nation.
The point of the law, Harrington said, was to eliminate "when courts should exercise jurisdiction over foreign sovereigns based on the foreign policy concerns of the moment."
"Hungary wants courts to decide whether these are the types of claims that should be heard in U.S. courts, but Congress has already decided that they are," she said.
Harrington's clients are survivors of the Hungarian Holocaust, including some who survived Nazi concentration camps and settled in the U.S. Hungarian officials forced hundreds of thousands of Jews on regularly scheduled trips to concentration camps on the state-owned railroad, and seized their property as part of the genocidal scheme. The lawsuit, filed 10 years ago, seeks to become a class-action suit.
The German case concerns a consortium of German Jewish art dealers who purchased a collection of medieval art called the Welfenschatz, or in English, the Guelph Treasure.
Goering, then prime minister of Prussia, forced the consortium to sell the collection far below its value, and presented it to Adolf Hitler as a surprise gift.
After the war, U.S. troops seized the collection and turned it over to a German agency, and it is now in a Berlin museum. Heirs of the consortium members filed the suit, seeking the Welfenschatz "and/or" millions of dollars.
Jonathan Frieman, representing the agency, told the court that Congress could not have meant to grant so much power to the federal judiciary in the area fraught with implications for foreign relations.
"Almost 700 judges . . . would sit as new world courts, judging the nations of the world for alleged violations of international human rights and the law of war," Frieman said.
The Justice Department backed both Germany and Hungary in the disputes. Deputy Solicitor General Edwin Kneedler, in the German case, said the exception plaintiffs rely on concerns property taken without compensation.
Chief Justice John Roberts said he understood the government's position is to encourage foreign governments to provide a forum for the complaints. But if that fails, Roberts asked, "then that's just too bad?"
And several justices seemed exasperated with the government's position in the Hungary case; it said courts should have the ability to decline to hear cases because of foreign relations concerns, but has not said whether that would be correct in the specific case.
Justice Elena Kagan said the State Department would be best positioned to advise a court on whether Hungary has provided an adequate forum for the dispute.
"I mean, some might say that what's going on here is that the State Department is expecting the courts to do the difficult and sensitive and some might say dirty work for you," she told Justice Department lawyer Benjamin Snyder.
Several justices worried about whether the involvement of U.S. courts would invite retaliatory efforts from other countries, and Gregory Silbert, representing Hungary, said they should be concerned.
"Some people say that the United States owes large outstanding debt for injustices that were committed in this country," Silbert said. Maybe Congress will confront it, he said, or maybe one day it will come before the Supreme Court.
But "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," Silbert said. "For the same reasons, the merits of this case should not be decided by an American judge applying American law in Washington, D.C."
The cases are Hungary v. Simon and Germany v. Philipp.
(COMMENT, BELOW)