point of order

Legislators, Jewish groups file amicus briefs in SCOTUS art case

The pending Supreme Court case centers on medieval art sold to the Nazis well below market rate by German Jews in 1935

Kjetil Ree

Supreme Court of the United States

Five members of the House of Representatives, as well as the World Jewish Congress, the American Association of Jewish Lawyers and Jurists (AAJLA) and the women’s organization Hadassah have filed amicus briefs in an ongoing Supreme Court case involving property purchased from a group of German Jews by Nazi agents in 1935.

The descendants of the Jewish art dealers are seeking, under the 2016 Holocaust Expropriated Art Recovery Act, restitution from the German government for a collection known as the Guelph Treasure. The medieval art collection was purchased by the Nazi government for what the dealers’ descendants say was well below market value. Each of the briefs filed Thursday supports the heirs against the German government, which is seeking to have the case thrown out. 

The briefs make broadly similar arguments, claiming that the sale constitutes part of the Nazi genocide of the Jewish people and that the case falls within U.S. jurisdiction and should not be dismissed under foreign sovereign immunities legislation.

The House members who joined the amicus brief — Reps. Jim Banks (D-IN), Steve Chabot (R-OH), Josh Gottheimer (D-NJ), Brian Fitzpatrick (R-PA) and Debbie Wasserman Schultz (D-FL) — are part of a larger group of lawmakers who sent a letter to German Ambassador Emily Haber expressing concerns about the German government’s arguments.

In their brief, the members of Congress argue that previous legislation grants the Jewish families the right to sue in U.S. court in this case, contrary to the German government’s position.

“Notwithstanding Congress’s clear legislative intent, Petitioners seek to avoid litigation in United States courts by urging this Court to endorse a policy of judicial abstention based on considerations of international comity,” the brief reads. “That position, if adopted, would constitute an impermissible judicial usurpation of Congress’s powers.”

A brief from the World Jewish Congress, its president, Ron Lauder, and the Commission for Art Recovery — which Lauder founded — also casts aspersions on the U.S. government, after the U.S. solicitor general filed a brief in support of the German position.

“It is highly improper, even repugnant, for the U.S. to argue that the crime of genocide cannot occur when the carnage, theft, and cultural destruction take place within a state’s own borders and involve a state’s own nationals,” the brief reads. “That was certainly not the U.S. position at Nuremberg.”

The brief from AAJLJ and Hadassah, among other groups, argues that the German government seeks to shift attention in the case away from the root issues at play.

“Petitioner-Defendants’ attempts to shift this case’s focus to other claims, ignore or minimize Nazi thefts, and hide behind the German nationality the Nazis stripped from Respondents reflects the weakness of their case on these facts,” the brief reads.

A coalition of Orthodox organizations, including the National Jewish Commission on Law and Public Affairs, National Council of Young Israel, Union of Orthodox Rabbis, Rabbinical Alliance of America and the Rabbinical Council of America, also filed an amicus brief.

The amicus briefs come on the heels of a response from Haber to the House members who expressed concerns in the case.

Haber’s letter, sent Monday, pushes back on concerns presented in the congressional letter, but does not address the specific facts of the case or questions raised by legislators.

“We regret that the submission of Germany as the petitioner in a case presented to the U.S. Supreme Court left questions as to the general position of the German Government on the Holocaust and our approach to dealing with the past,” Haber wrote.

“Germany stands by its moral, political and historical responsibility for the Holocaust and Holocaust victims,” the letter continues. “The German Government is committed to safeguarding the historical record of the Holocaust and certainly does not contest any historical facts in relation to the timeline of the Holocaust.”

Banks, one of the leaders on the original letter, described Haber’s response as insufficient.

“Ambassador Haber replied to our letter, but she never directly responded to our questions,” he said. “Luckily, when Supreme Court proceedings begin, Germany won’t be able to wiggle away from tough questions. And based on the amicus brief I filed, there will be plenty.”

Oral arguments in the case are set for December 7.

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