| Two hours prior to LaGrand's scheduled execution, Germany asked the U.S. Supreme Court 1) to dispense with normal printing requirements for petitions, 2) to exercise its original jurisdiction in cases involving a foreign government, and 3) to grant a preliminary injunction against Governor Hull based on the ICJ preliminary measures. The U.S. Solicitor General objected in a letter noting inadequate time to read the materials, claiming that ICJ provisional measures were not a legally enforceable order, and insisting that The Vienna Convention offered no basis for a stay of execution. |  |
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For the second time in two years, the nine Justices had to decide whether to enforce an ICJ consular notice decision calling for a stay of execution. In Breard, six justices had rejected the international law claim by applying the procedural default and last in time rules. In the 1996 Anti-Terrorism and Effective Death Penalty Act Congress had restricted federal habeas appeals; any conflict with the 1963 Vienna Convention would be resolved in favor of the more recent statute. The majority also found that the treaty left to state parties the procedural rules for implementation, and that in Breard’s case evidence of guilt was so overwhelming that failure to notify the consulate was harmless error. The court also applied the 11th Amendment provision barring suits against state government to immunity for Virginia. Justices Bryer, Stevens, and Ginsburg all dissented in Breard and would have granted a stay in order to hear argument on the merits. [31] The Court swiftly dispensed with Germany v. U.S. in a one paragraph, unsigned per curiam opinion. Seven justices regarded Germany’s tardy petition as too late for consideration and noted that the Constitution’s Article III grant of original jurisdiction only applied in cases affecting Ambassadors, other public Ministers and Consuls. Five Justices also reasoned that the 11th Amendment granted Arizona immunity from suit by a foreign government. Justices Bryer and Stevens dissented, and Justices Souter and Ginsburg joined their objections to granting immunity under the 11th Amendment. [32] |
