NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 14th of December, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
Well, the big news on Friday from the Supreme Court was that 7 justices said no to the lawsuit filed by Texas Attorney General Ken Paxton to overturn results of the presidential election in four states.
The majority found Texas lacked standing to contest the manner in which another state conducts its elections. Justices Samuel Alito and Clarence Thomas thought the court was required to hear the case, although they expressed no position on the merits of it.
The lawsuit alleged Georgia, Michigan, Pennsylvania, and Wisconsin ignored state law about absentee and mail-in voting. In turn, it’s alleged that those unlawful acts tainted the integrity of the entire election and made it impossible to know who legitimately won.
EICHER: The Supreme Court handed down four decisions last week in argued disputes, all unanimous 8-0. Cases argued before Justice Amy Coney Barrett took her seat.
First, a win for religious liberty in a case called Tanzin v Tanvir. It says when a person makes a claim that a government official violates his First Amendment rights, that person can sue the official in his personal capacity and seek money damages.
Here, three Muslim men who are U.S. citizens or possess green cards challenged the FBI’s decision to put their names on the No Fly List. That registry keeps named persons from flying to or from the United States. The men argued this was retaliation because they refused to inform on fellow Muslims.
The opinion says that the phrase “appropriate relief” in the Religious Freedom Restoration Act includes personal liability.
REICHARD: Alright, second opinion: the court upheld the rape convictions of three men in the military. In United States v Briggs, the court reversed the military’s top court that had dismissed the cases as filed too late.
EICHER: Third decision: The justices said no to a lawyer in Delaware who said he wanted to be a judge on a state court. James Adams objected to the state requirement that limits seats on its top courts to Republicans or Democrats. Adams says he’s a Bernie Sanders Independent. So he sued, claiming that violates his First Amendment right to freedom of association. Adams lost, but narrowly. See, he hadn’t actually applied. His claim was the discouragement to apply. But the court said, in the absence of the application, he suffered no legal injury and so he lacked standing to sue.
REICHARD: The final ruling is in a case I haven’t yet covered here on Legal Docket. I’ll explain briefly: Some disputes are repetitive and so I try to bundle them together to cover more cases in less time. My strategy backfired on me this time and the justices issued a ruling before I got around to covering the argument. Sorry about that.
Anyway, this case arises from Arkansas where rural pharmacies are shutting down in part because of the way employer health plans pay them. Oftentimes, pharmacists receive payment to fill prescriptions that’s not enough to cover the cost of filling them. That’s because of the middlemen who handle these transactions between insurers and pharmacies. (These are “pharmacy benefit managers.”) The idea is to drive down drug prices, but economic reality resulted in pharmacy deserts in rural areas.
EICHER: So Arkansas put a stop to it, and an industry association sued. But the justices ruled Arkansas can continue to regulate these middlemen and it doesn’t conflict with federal law to do so.
Alright, now on to two oral arguments with roots in the Holocaust.
One case is called Republic of Hungary v Simon et al. The Simon is Rosalie Simon. She’s originally from Hungary, where the government marched a half million Jews to railway stations, stripped them of personal possessions, forced them onto trains, and took them to concentration camps where the Nazis killed 9 of every 10.
Simon is one of the survivors and she’s an American citizen now. Along with 13 other Holocaust survivors, she seeks compensation from Hungary and the railways for property they took.
REICHARD: Instead of suing in Hungarian courts, though, Simon and the others sued in U.S. courts under a law called the Foreign Sovereign Immunities Act. I’ll need to refer to it a lot, so I’ll use the shorthand initialism FSIA, Foreign Sovereign Immunities Act.
Generally, FSIA limits when plaintiffs can sue foreign governments in American courts. Suits can proceed, for example, around acts of terrorism or for taking property in violation of international law.
Simon argues her situation falls under that “taking” language: that provides American jurisdiction over some claims like this one. Hungary’s lawyer, of course, disagreed. This is Gregory Silbert:
SILBERT: In this case, plaintiffs allege that Hungary took property from Hungarians in Hungary during World War II. The United States long ago settled its claims against Hungary for wartime property confiscations, yet plaintiffs ask an American court to apply American law and impose economy-crushing liability on another sovereign nation for conduct in the sovereign’s own territory that harmed its own nationals more than 75 years ago.
Besides, Silbert argued, FSIA takes a back seat to treaties that predate it.
Sarah Harrington is lawyer for the survivors. She cited this country’s longstanding interest in helping Holocaust victims seek justice. That’s what the FSIA was intended to do, and the Supreme Court ought to let the FSIA do its work.
HARRINGTON: This Court has held over and over that our Constitution assigns responsibility for foreign policy to the elected branches, not to courts. And over the last 70 years, those branches have repeatedly taken steps to make it easier for plaintiffs to pursue Holocaust-era claims like these in U.S. courts.
Justice Elena Kagan picked up on an earlier threat about the potential damages in a case like this that could literally bankrupt a country.
KAGAN: That seems as though it’s screaming severe international friction. Why shouldn’t we be able to acknowledge something like that?
HARRINGTON: Well, Justice Kagan, you know, I think any sort of speculation…
And that was Harrington’s basic point, that “potential damages” are exactly that—speculative.
In this case, the United States government takes Hungary’s legal position. Assistant to the Solicitor General Benjamin Snyder brought the argument, but carefully declined to take a position on the facts of this case.
And that irritated Chief Justice John Roberts. Listen to this exchange between the Chief and Snyder who, it happens, is a former law clerk of Roberts.
ROBERTS: Why hasn’t the government told the courts what the foreign relations impact on the United States is?
SNYDER: Well, Your Honor, the United States doesn’t feel that it has sufficient information about how the proceedings would unfold in Hungary to take —
ROBERTS: How long has the case been going on that you haven’t gotten that information yet?
For a while, Snyder answered, pointing out that the State Department has the same information in the records as does the court. I’ll just say, that didn’t cut the tension.
ROBERTS: Well, I’m sure that’s true, but you also have other resources, like our embassies, other communications between the two countries at the executive level.
SNYDER: That’s true, Your Honor. The State Department simply doesn’t feel that it has sufficient information to provide the Court with a recommendation.
ROBERTS: Mr. Snyder, surely they have as much information as they –they need to make a decision. They just don’t want to make a decision.
Awkward. And then Justice Elena Kagan added insult to injury:
KAGAN: 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.
Needless to say Snyder and his client the executive branch of the US government was having a hard go of it.
He’d argued for a more piecemeal approach to deciding whether a particular dispute might hurt foreign relations before proceeding with the case. Justice Alito:
ALITO: I mean, there are almost 700 district judges. You want every one of them to assess whether a particular lawsuit raises foreign relations concerns?
SNYDER: Your Honor, we think that it makes sense for the courts to be able to do that.
The legal question comes down to this: does the crime that happened to Rosalie Simon and the others on the way to the death camps amount to a “taking” under FSIA?
Lawyer Silbert for Hungary acknowledged the unspeakable, undeniable horrors of the Holocaust. But he warned the court about the precedent it could set by allowing these cases to proceed in American courts:
SILBERT: 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.
This next Holocaust related case arises from Germany. It involves a $225 million collection of art, known as the Guelph Treasure.
Here, the question is whether that artwork currently in a museum ought to be returned to the heirs of four Jewish art dealers. It’s alleged that Nazi Hermann Goering forced the art dealers to sell the art for far less than it was worth.
The heirs of these art dealers went through the process in Germany to retrieve the art, but a review panel found the sale was not actually forced. That’s why the heirs look to American courts now.
Nicholas O’Donnell is their lawyer.
O’DONNELL: The Nazi government set out explicitly to destroy the German Jewish people by taking their property. And Congress has specifically identified the Nazi’s 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.
Therefore, O’Donnell continued, the same law as in the Hungarian case, FSIA, gives American courts jurisdiction.
But Justice Stephen Breyer brought it around to that earlier concern of reciprocity and that no nation is without blemish:
BREYER: And if we can bring these kinds of actions here, well, so can these other countries do the same and accuse us. I mean, what about Japanese internment, which involved 30,000 people in World War II who were not American citizens but were of Japanese origin? And the first time we’d sue China for the Rohingyas or whatever, you know, what do you think they’re going to say about the railroad workers who came in in the 19th century? I mean, that seems in no way to limit it according to a principle that would say we should have the actions here that are universalizable and won’t hurt, through chaos, if they’re brought everywhere.
Lawyer Jonathan Freiman for Germany agreed with the lawyer for the heirs that FSIA is about property rights; but the law doesn’t apply to a situation where Germany took property from its own people within its own borders.
Other laws and treaties deal with that.
The court below got it wrong, Freiman argued, by finding the sale of the art was itself an act of genocide and therefore a taking in violation of international law. That’s the hook by which the other side wants to use FSIA.
But it’s not what Congress intended.
FREIMAN: And as several members of the Court have noted today, slavery, systematic racial discrimination, and other norms, like crimes against humanity or the laws of war, can all involve takings. Almost 700 judges, as several of you have noted, would sit as new world courts, judging the nations of the world for alleged violations of international human rights and the law of war. Much more should be required from the text to reach this result.
However the court decides, it’s possible the parties can work out a compromise. There’s precedent for this: in 2014 for example, the US State Department got France to put $60 million into a compensation fund for French Jews deported by French state railways to Nazi death camps.
The victims of the Holocaust may not succeed in these cases because of interpretations and technicalities; but other avenues still exist. And that’s this week’s Legal Docket.