114
Breyer, J., dissenting
The Court has made Germany's motion for a preliminary stay moot by denying its motion to file its complaint and "declin[ing] to exercise" its original jurisdiction in light of the "tardiness of the pleas and the jurisdictional barriers they implicate." Ante, at 112. It is at least arguable that Germany's reasons for filing so late are valid, and the jurisdictional matters are arguable. Indeed, the Court says that it is merely "doubtful that Art. III, § 2, cl. 2, provides an anchor" for the suit and that a foreign government's ability to assert a claim against a State is "without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles." Ante, at 112 (emphasis added). The words "doubtful" and "probable," in my view, suggest a need for fuller briefing.
For these reasons I would grant a preliminary stay.
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