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Marshall’s Precedent
Recent Developments

The Supreme Court plays no formal role in making or applying U.S. foreign policy, but through history the Court has gone to some lengths to limit U.S. courts’ power to hear cases stemming from events in other countries. The Court’s policy, first announced more than two centuries ago in a decision by Chief Justice John Marshall, has been to avoid subjecting foreign countries or foreigners to American courts in order to minimize the risk of creating friction between the United States and other countries. In this Court Report, court expert Kenneth Jost discusses the Court’s consistent stance on opposing U.S. lawsuits involving foreign countries historically and for the foreseeable future.

The Court most recently followed this policy in a pair of decisions issued on February 3, 2021, that barred U.S. citizens among others from suing the present-day governments of Germany and Hungary in an effort to obtain compensation for Nazi-era confiscation of property from their Jewish nationals before and during World War II.

The Court’s unanimous decisions in the two cases— Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon —allowed Germany and Hungary to rely on the general principle of foreign sovereign immunity in another nation’s court system despite an exception in United States law for suits based on property rights “taken in violation of international law.” The plaintiffs in the first of the cases claimed that their German Jewish art dealer ancestors had been forced to sell a valuable collection of medieval relics to the German state of Prussia in the early years of Nazi rule at one-third of the collection’s actual value.

The former Hungarian nationals in the second case sued Hungary in a class action on behalf of all Hungarian survivors and victims of the wartime Hungarian government’s persecution of Jews. They alleged that Hungary, a German ally during the war, confiscated millions of dollars’ worth of property and valuables from Hungarian Jews before deporting hundreds of thousands of them to death camps.

The two cases pitted two strongly held U.S. legal policies against each other: respect for foreign sovereign immunity and the United States’ support for reparations for surviving victims of the Holocaust. In his opinion for the Court in the Germany case, Chief Justice John G. Roberts Jr. rejected the claims by the art dealers’ heirs by citing the so-called domestic takings rule, which generally bars foreign courts from ruling on another government’s taking of property from its own nationals.

Roberts concluded that the domestic takings rule survived in U.S. law despite the exception added to the Foreign Sovereign Immunities Act in 1976 to allow suits against a foreign government in cases involving “property taken by an act of that state in violation of international law.” Roberts acknowledged that Congress had passed other laws aimed at encouraging reparations and restitution in favor of victims of the Nazis’ persecution of Jews and others. But he bluntly warned against claiming U.S. preeminence over international law. “United States law governs domestically,” he wrote, “but does not rule the world.”

Marshall’s Precedent

Chief Justice Marshall led the Court in its precedent-setting decision to limit the power of U.S. courts over foreign nations. The 1812 ruling blocked two Marylanders from their efforts to regain possession of a merchant ship that France had seized while on the open seas and refitted as a Napoleonic man-of-war. Businessmen John McFadden and William Greetham filed an admiralty law case in federal court in Philadelphia after the French ship, now renamed Balaou, was forced by bad weather to put into the port of Philadelphia on July 22, 1811.

A district court judge dismissed their case, but the case reached the Supreme Court in its 1812 term after a circuit court ruled in the Americans’ favor by reinstating their suit. President James Madison’s administration, interested in maintaining good relations with France, asked the Court to hear the case on an expedited schedule and sided with France by arguing that international law did not allow U.S. courts to exercise jurisdiction over a naval vessel belonging to a nation at peace with the United States. The Madison administration argued that a ruling to allow the suit would “amount to a judicial declaration of war” against France.

In recounting the Court’s decision in his biography of Marshall, historian Jean Edward Smith recalls that Marshall, while serving in the House of Representatives, had expressed the view that U.S. foreign relations were entrusted to the president and Congress. He turned that view into settled law in his eventual decision for the unanimous Court in The Schooner Exchange v. McFaddon (1812), with McFadden’s name misspelled in the official report.

Marshall reasoned, according to Smith’s account, that foreign nations “had to know who represented the United States.” Marshall, Smith added, “was making it clear that it was the executive branch and not the Court.” Smith also noted that the historian Charles Warren has praised the decision as “an opinion which has ever since constituted one of the great fundamental decisions in international law.” Marshall’s later Supreme Court colleague, Joseph Story, is quoted as having described the decision as the Court’s definitive holding on sovereign immunity.

The Court’s decision also established the practice of relying on and deferring to the executive branch on issues of foreign sovereign immunity. That practice prevailed well into the 20th century until Congress in 1976, unhappy with the expansive view of foreign sovereign immunity, codified some restrictions on the doctrine in the Foreign Sovereign Immunities Act (FSIA).

Recent Developments

Lawmakers in the 94th Congress made clear their intention in enacting the FSIA to transfer foreign sovereign immunity decisions from the executive branch to the judiciary for determination according to statutory law rather than diplomacy. The act, codified at 28 U.S.C. §§ 1330, 1332, 1391(f), 1441(d), and 1602–1611, specified, for example, that a foreign government could be subject to jurisdiction in U.S. courts for commercial activity in the United States—such as ticket sales by a state-owned railway. The expropriation exception, enacted in §1605(a)(3), drew relatively little attention until the cases against Germany and Hungary reached the Court in its 2020 term.

Even after Congress moved the goalposts, however, the Court continued to steer U.S. courts away from taking on litigation arising in foreign countries that might create friction between the United States and other countries. Most notably, the Court has limited the use of an 18th century law, the Alien Tort Statute, as the basis for bringing suits against U.S. or multinational corporations based on human rights violations, unfair labor practices, or environmental damage. The 1789 law, codified at 28 U.S.C. §1350, gives U.S. courts jurisdiction for a suit by an alien “for a tort only, committed in violation of the law of nations or a treaty of the United States.”

The 1789 act had gone largely unused until human rights lawyers in the United States, representing Paraguayan immigrants Joel and Dolly Filártiga in the United States, used the law to sue a former Paraguayan official for the politically motivated kidnapping and torture death of the Filártigas’ teenaged son in Paraguay in 1976. The federal appeals court for New York approved the suit in a decision issued in 1980, Filártiga v. Peña-Irala , and U.S. courts eventually upheld the lower court’s $10.4 million award against Americo Norberto Peña-Irala, the former inspector general of police in the Paraguayan capital of Asunción, who was also living in the United States at the time of the litigation.

The Filártiga case never reached the Supreme Court, but the Court under Chief Justice John G. Roberts Jr. has limited some cases brought under the Alien Tort Statute with an eye to avoiding friction with other countries. As one example, the Court in 2013 barred a federal court suit that accused multinational oil companies of conspiring with the Nigerian government to suppress peaceful resistance to oil development in the Niger River Delta.

Writing for a five-justice majority in the fractured unanimous decision, Roberts concluded that the U.S. law generally does not apply extraterritoriality to events in other countries. In the new decision in the Germany case, Roberts quoted from his previous opinion in Kiobel. “We have recognized that ‘United States law governs domestically but does not rule the world,’” Roberts wrote, noting that he had used the same phrase in a 2007 decision as well.

Roberts also warned in his decision in the Germany case of the risk that other countries might retaliate against the United States for subjecting them or their citizens to jurisdiction in U.S. courts. “We have interpreted the FSIA as we do other statutes affecting international relations,” Roberts explained, “to avoid, where possible, producing friction in our relations with [other] nations and leading some to reciprocate by granting their courts permission to embroil the United States in expensive and difficult litigation.”

The Court similarly rejected the plaintiffs’ suit against Hungary, with a short, unsigned opinion that cited the full-length opinion in the Germany case. The Trump administration followed the Madison administration’s example in siding with the foreign countries, Germany and Hungary, in the two cases.

The plaintiffs in the two suits had support at the Supreme Court from several Jewish organizations, but none of those organizations responded immediately with critical statements. By contrast, several international law experts, in Europe and the United States, voiced approval of the decision as consistent with well established international law.

Thus, it appears that despite the development of universal human rights law in the two centuries since John Marshall, the Supreme Court appears committed to Marshall’s caution about allowing U.S. courts to sit in judgment about events overseas. That caution prevails even when American plaintiffs ask U.S. courts for help in obtaining compensation for the grievous wrongs committed during the Nazi-era genocide against European Jews.


Document Citation
Kenneth Jost, Court Wary of Cases with Foreign Policy Implications , CQ Supreme Court Collection (2021),
Document ID: cqelsc-1619-115086-2971112
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