day in court

Supreme Court takes up Nazi-looted art case in new term

The case, involving a Pissarro painting, has been ongoing since 2005

Kjetil Ree

Supreme Court of the United States

The Supreme Court is once again delving into the legal complexities surrounding Nazi-looted art in a new case — its third in the past two terms — hinging on whether state or federal law has jurisdiction.

The Court announced last Thursday that it would take up the case of Cassirer v. Thyssen-Bornemisza Foundation. The case, which began in 2005, involves a painting by Jewish French impressionist Camille Pissarro that was looted by the Nazis in 1939. The piece now resides in the Thyssen-Bornemisza Museum, a state-owned museum in Madrid. Spain has refused to return the artwork to the descendants of the artwork’s Holocaust-era owner.

The Paris street scene painting, a 1897 work titled “Rue Saint-Honoré, Afternoon Effect,” was originally owned by Lilly Cassirer, a Jewish woman whose father-in-law bought the painting directly from Pissarro’s dealer. She traded it under duress to the Nazis in exchange for exit visas for herself and two family members. The painting is now valued at $30 million.

After being auctioned off by the Gestapo, the painting eventually ended up in a New York gallery, from which Swiss art collector Baron Hans Heinrich Thyssen-Bornemisza acquired it in 1976. After Thyssen-Bornemisza died, a Spanish nonprofit acquired the piece and other works from his collection, creating the eponymous museum that now holds the painting.

The Cassirer family accepted restitution from the German government for the artwork and believed it had been lost or destroyed. 

Claude Cassirer, grandson of Lilly, found out that the Madrid museum had the painting in 1999 and requested its return, which was rejected by the Spanish government. Claude has since died and his son, David Cassirer, is now handling the case. He’s currently represented by legal heavyweight David Boies, among others.

The Cassirers’s attorneys argue in a brief that, under California law, the Spanish museum could never acquire legal possession of the stolen artwork. Under Spanish law, the museum has acquired a legal right to the stolen work by holding possession of it for a sufficient length of time.

Federal district and circuit courts in California have ruled in favor of the museum. Both courts did, however, criticize the museum and Thyssen-Bornemisza for not doing more to research the painting’s provenance. The district court judge also argued that Spain had not followed “moral commitments” to return the art, but that he had no authority to force it to do so. The appeals court similarly argued that U.S. courts “cannot order compliance with the Washington Principles or the Terezin Declaration,” two international agreements on Holocaust restitution issues.

Other federal circuit courts have ruled in other cases involving similar questions which laws are applicable that state law, rather than federal law, should apply.

“The painting was indisputably owned by the Cassirer family and indisputably stolen by the Nazis in 1939. And now you have a democratic ally of the United States refusing to honor its international commitments and do the obvious thing, which is to return the painting to the family,” Sam Dubbin, a lawyer representing the Cassirer family who is experienced in Holocaust restitution issues, told Jewish Insider. “We’re gratified that the Supreme Court is taking up the case.”

In a statement, Nixon Peabody, the firm representing the art museum, argued that even if the Supreme Court decides that state law should apply, the ultimate outcome will be the same.

“At the conclusion of the case, regardless of which choice-of-law test is applied, the Foundation anticipates that its ownership of the painting — already recognized by the district court and the Ninth Circuit — will be affirmed,” the statement read.

A brief from the Cassirer family lawyers responds that the issues raised in the case “cannot be brushed aside by [the museum’s] glib assertion that the same outcome might have resulted from actual application of California’s choice-of-law test.”

This case follows two others in the previous term involving Holocaust-era art restitution claims. In both cases, the court unanimously ruled against the families of Holocaust survivors attempting to reclaim their property, and in favor of the German and Hungarian governments.

The heir in the Pissarro case argues in a brief that his case is different because in those cases, the survivors were considered by the Court to be citizens of the countries that stole their property, making the cases domestic issues and not violations of international law. Because the exchange of the Pissarro piece took place after the Nazi regime stripped German Jews of citizenship, the Cassirer family’s attorneys argue the case cannot be considered a domestic issue.

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