Was the Supreme Court Blind To Nazi Persecution of Germany's Jews? | Opinion

In 1857, the Supreme Court issued its infamous decision in Dred Scott v. Sandford. Chief Justice Roger Taney's opinion pronounced as a matter of law that "the enslaved African race" could not ever qualify for United States citizenship. But before Taney issued his odious ruling, did America's Black population enjoy American citizenship? Incontestable history establishes that Black slaves—including those who fled to abolitionist states—were not United States citizens even prior to Taney's declaration.

The Jews living in Hitler's Germany in 1935 were destined for eradication—a fate that may then have seemed unimaginable. But government policies starting with Hitler's rise to power in 1933 had, by June 1935, stripped Germany's Jews of virtually all rights of citizenship. In September 1935, the Third Reich enacted the "Nuremberg Laws" that formally declared what every German already knew—that Jews no longer qualified as German citizens. Indisputable historical facts establish that months before the infamous Nuremberg edicts, Jews in Germany were denied citizens' rights that Aryans enjoyed.

The Supreme Court has just announced a decision that is blind to history. Three Jewish merchants living in Frankfurt in June 1935 sold a multi-million dollar medieval treasure (the "Welfenschatz") to agents of Hermann Goering (who then bestowed it on Hitler as a "surprise" gift) for less than one-third of its value. It is now displayed prominently as a nationally owned relic in a Berlin museum. In a decision issued on February 3, the United States Supreme Court shut the doors of American courts to two American citizens who, as heirs of the Jewish owners, claim that the sale was coerced. The Court agreed with Germany that Germany was only "taking...its own nationals' property"—governmental conduct not precluded by "the international law of expropriation."

Jews in Hitler's Germany were no more "nationals" of Germany than Dred Scott was a "citizen" of the United States even before he was formally juridically denied that status. Had the sale of the Welfenschatz been consummated in December 1935, rather than in June, the owners' legal statelessness would have converted the transaction into a violation of international law enforceable in an American court. Form has vanquished substance if the heirs' claim for compensation now depends on when the Nazis chose to embody in law what they had been already practicing for more than two years.

U.S. Supreme Court building on January 7
U.S. Supreme Court building on January 7, 2021 Robert Nickelsberg/Getty Images

The justices should have berated Germany, not rewarded it. Its conduct deserves the condemnation that Elijah the prophet addressed to King Ahab for rejoicing in Naboth's vineyard after Queen Jezebel arranged to have Naboth executed so that his property would escheat to the king: "Have you murdered and also inherited?" (Kings I: 21:19).

Why did a unanimous Court issue such a benighted decision? If ever called on, the justices can explain their ruling. They addressed the only argument the heirs' lawyer made to the Supreme Court and to the lower courts (whose judges accepted it because they plainly sympathized with the request for delayed restitution)—that the purchase of the Welfenschatz was one phase of Germany's genocide of the Jewish people.

This legal claim stood little chance of prevailing in the Supreme Court because, as the Court found, it extends a foreign government's potential liability to "any human rights abuse"—far beyond what Congress intended in authorizing lawsuits in American courts against foreign sovereigns. The lawyer's choice also prompted the State and Justice Departments to join Germany and urge that the Court reject a construction of the Foreign Sovereign Immunities Act that would extend governmental liability so far that America might be held reciprocally liable for alleged "human rights abuse" in foreign courts. Germany also told the Supreme Court that the heirs had failed in the lower courts to press the claim that in 1935, Jews were no longer German "nationals." Germany argued that the heirs had thereby "forfeited" that legal contention.

Chief Justice John Roberts' opinion fortunately did not irrevocably doom the heirs' prospects. The opinion ends with a line that may salvage the heirs' lawsuit. The Court said that its ruling did not decide whether "the sale of the Welfenschatz is not subject to the domestic takings rule because [the sellers]...were not German nationals at the time of the transaction." The trial court, said the chief justice, should decide that issue as well as the question of "whether [the claim]...was adequately preserved below."

Justice has been delayed, but hopefully it has not been finally denied.

Nathan Lewin is a Washington lawyer with a Supreme Court practice who has taught at Columbia, Harvard, Georgetown and the University of Chicago Law Schools. He drafted and filed an amicus curiae brief in Federal Republic of Germany v. Philipp.

The views expressed in this article are the writer's own.