The Norton Simon Museum is asking the U.S. Supreme Court to review what its attorneys call a "profoundly misguided decision" by a federal appeals court that has kept alive a lawsuit aimed at wresting away ownership of two of the Pasadena museum's most prized holdings: paired depictions of Adam and Eve by the German Renaissance painter Lucas Cranach the Elder.
The nearly 500-year-old paintings are believed to have been stolen by the Nazis in 1940 from Jacques Goudstikker, a Dutch-Jewish art dealer. His daughter-in-law, Marei Von Saher, sued the museum for their return, in a case that has lasted more than seven years. In June, in a 2-1 ruling, the U.S. 9th Circuit Court of Appeals resurrected Von Saher's case against the museum after it had been dismissed by a federal judge in Los Angeles.
The petition the museum sent this week to the Supreme Court urges it to take up the case because, it contends, the 9th Circuit ruling conflicts with legal principles already upheld by the Supreme Court, and could open the door for other cases that would improperly try to second-guess U.S. foreign policy outcomes.
The Supreme Court rejects the vast majority of petitions to review lower courts' decisions, picking only cases it considers to have raised signficant legal issues or that pose conflicts with past decisions, muddying how laws should be interpreted.
The foreign policy question at issue in Von Saher vs. Norton Simon stems from the post-World War II U.S. policy known as "external restitution," in which Nazi-looted artworks recovered by American forces were sent back to the countries where they had been stolen. It was left to the postwar governments of the formerly Nazi-controlled nations to invite claims to looted art and judge whether they were valid.
The argument is now over whether the Dutch government's handling of the Goudstikker family's claim to "Adam" and "Eve" satisfied the requirements of the external restitution policy.
The art dealer's widow, Desi Goudstikker, refused to submit a formal claim with the Netherlands for the looted art because she felt Dutch procedures were biased against Jewish claims. Dutch authorities sold the paintings in 1966 to an American who in turn sold them to Norton Simon in 1971, four years before the founding of the museum. It shows the art collection Simon amassed with a fortune built on his Hunts Foods conglomerate.
In a 2011 legal brief filed in an earlier round in the case, the U.S. solicitor general, who represents the executive branch of government before the Supreme Court, said that "bona fide" proceedings for "Adam" and "Eve" had in fact been carried out by the Netherlands, and that the outcome should be respected. The brief became the basis of trial judge John Walter's 2012 dismissal of Von Saher's claim to the paintings.
In a June opinion, the two-judge 9th Circuit majority criticized the solicitor general's analysis of the case, ruled that the external restitution policy had not been carried out, and that Von Saher's lawsuit could proceed because it posed no conflict with the legal principle that courts can't adjudicate questions of foreign policy, which are the executive branch's prerogative under the Constitution.
The museum's petition cites past cases in which the Supreme Court agreed that the solictor general's views should be accepted by the courts as an authoritative interpretation of what U.S. foreign policy is.
"The 9th Circuit's astonishingly harsh treatment of the [solicitor general's] foreign poicy views is so out of step with [Supreme Court] precedents that its ruling should be overturned," the petition says.
It asks the Supreme Court to make a final ruling that the case should have been dismissed. If that happens, Von Saher's claim will have been defeated and "Adam" and "Eve" will continue to hang at the Norton Simon Museum as they have since the 1970s.
Alternately, the petition said, the Supreme Court could order the 9th Circuit judges to reconsider the case, but "respecting" rather than contradicting the executive branch's views as stated by the solicitor general.
If the Supreme Court declines to take up the case, or affirms the 9th Circuit's decision, Von Saher vs. Norton Simon would resume in U.S. District Court in Los Angeles, where the 9th Circuit's June ruling instructed the judge to consider legal issues rising from the Dutch government's initial 1966 sale of "Adam" and "Eve."