WASHINGTON (CN) — The Supreme Court kickstarted its fall term Thursday with certiorari grants for four new cases, including one on Nazi art theft during the Holocaust and another about the fight to fly a Christian flag on Boston City Hall flag poles. Separately the justices have ordered a hearing on whether Senator Ted Cruz has a First Amendment right to lend his campaign as much money as he wants.
Regrets and repatriation
In the art case, the painting “Rue Saint-Honoré in the Afternoon, Effect of Rain,” by the French impressionist Camille Pissarro, was thought lost forever by the family of Lilly Cassirer, a Jewish woman who traded the piece to the Nazis in 1939 in exchange for her family’s safe passage out of Germany and 900 Reichsmarks, about $360, well below the market value.
Though the Cassirers would later accept restitution for the theft facilitated by a post-war Allied forces tribunal, that decision begat remorse in 2000 when Lilly’s grandson Claude Cassirer found the piece hanging at the Museo Thyssen-Bornemisza in Madrid.
The piece was one of hundreds acquired in the 1990s by the Thyssen-Bornemisza Foundation, named for Baron Hans Heinrich Thyssen-Bornemisza, for $338 million, with funding from the Spanish government.
In 2015, shutting down a federal complaint that by the Cassirer family, U.S. District Judge John Walter ruled that the foundation's acquisition of the painting satisfied Spanish law.
A Ninth Circuit panel affirmed that ruling in August 2020, following two rounds of oral arguments, leading the Cassirer family to petition the Supreme Court this past May. They argued that the Ninth Circuit deepened a circuit split on whether California or Spanish law should be applied to the family’s state law under the Foreign Sovereign Immunities Act.
“Under California law, a holder of stolen property (such as the Spanish state museum here) can never acquire good title, while under Spanish law, an adverse possession rule protects the museum’s title,” the family’s attorney David Boies of the firm Boies Schiller Flexner argues. Boies also notes that four other circuit courts have held that under FSIA the courts must apply the choice-of-law rules of the state the suit is taken up in.
Sarah Erickson André, who represents the foundation for the firm Nixon Peabody, responded in an opposition brief that Supreme Court intervention is unwarranted “because the split is shallow.”
Per the court's custom, the justices did not issue any statement in taking up the case Thursday.
Government speech
The justices did not comment on any of the cases in Thursday's order list, one of which pits the city of Boston against Howard Shurtleff, the co-founder of a group called Camp Constitution, who wants to fly a flag emblazoned with a red Latin cross outside Boston’s City Hall.
The building has three 83-foot-tall flagpoles, one of which always flies the U.S. flag and another that always flies the state flag. The third usually flies the city flag but citizens can petition to temporarily raise another flag.
As Shurtleff noted in his lawsuit, the city had approved each of the 284 requests it received to fly other flags between 2005 and 2017. It said no to Shurtleff, however, when he proposed flying the Christian flag associated with his group to mark the signing of the U.S. Constitution on Sept. 17, 1787.
Shurtleff seeks a Supreme Court reversal after a federal judge ruled against him and the First Circuit affirmed. The appeals court said the flagpoles represent the government’s speech, not the public’s speech, because a casual observer seeing the flags would assume that the city intended whatever message they convey.
Represented by attorney Mathew Staver of Liberty Counsel, Shurtleff said in petition for a writ of certiorari that Boston's conduct amounts to religious discrimination.
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