Bucklew v. Precythe

(Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BUCKLEW v. PRECYTHE, DIRECTOR, MISSOURI

DEPARTMENT OF CORRECTIONS, ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 17–8151. Argued November 6, 2018—Decided April 1, 2019

In Baze v. Rees, 553 U. S. 35, a plurality of this Court concluded that a

State’s refusal to alter its execution protocol could violate the Eighth

Amendment only if an inmate first identified a “feasible, readily im-

plemented” alternative procedure that would “significantly reduce a

substantial risk of severe pain.” Id., at 52. A majority of the Court

subsequently held Baze’s plurality opinion to be controlling. See

Glossip v. Gross, 576 U. S. ___.

Petitioner Russell Bucklew was convicted of murder and sentenced

to death. The State of Missouri plans to execute him by lethal injec-

tion using a single drug, pentobarbital. Mr. Bucklew presented an

as-applied Eighth Amendment challenge to the State’s lethal injec-

tion protocol, alleging that, regardless whether it would cause excru-

ciating pain for all prisoners, it would cause him severe pain because

of his particular medical condition.

The District Court dismissed his challenge. The Eighth Circuit,

applying the Baze-Glossip test, remanded the case to allow Mr. Buck-

lew to identify a feasible, readily implemented alternative procedure

that would significantly reduce his alleged risk of pain. Eventually,

Mr. Bucklew identified nitrogen hypoxia, but the District Court found

the proposal lacking and granted the State’s motion for summary

judgment. The Eighth Circuit affirmed.

Held:

1. Baze and Glossip govern all Eighth Amendment challenges,

whether facial or as-applied, alleging that a method of execution in-

flicts unconstitutionally cruel pain. Pp. 8–20.

(a) The Eighth Amendment forbids “cruel and unusual” methods

of capital punishment but does not guarantee a prisoner a painless

2 BUCKLEW v. PRECYTHE

Syllabus

death. See Glossip, 576 U. S., at ___. As originally understood, the

Eighth Amendment tolerated methods of execution, like hanging,

that involved a significant risk of pain, while forbidding as cruel only

those methods that intensified the death sentence by “superadding”

terror, pain, or disgrace. To establish that a State’s chosen method

cruelly “superadds” pain to the death sentence, a prisoner must show

a feasible and readily implemented alternative method that would

significantly reduce a substantial risk of severe pain and that the

State has refused to adopt without a legitimate penological reason.

Baze, 553 U. S., at 52; Glossip, 576 U. S., at ___. And Glossip left no

doubt that this standard governs “all Eighth Amendment method-of-

execution claims.” Id., at ___. Baze and Glossip recognized that the

Constitution affords a “measure of deference to a State’s choice of ex-

ecution procedures” and does not authorize courts to serve as “boards

of inquiry charged with determining ‘best practices’ for executions.”

Baze, 553 U. S., at 51–52. Nor do they suggest that traditionally ac-

cepted methods of execution are necessarily rendered unconstitution-

al as soon as an arguably more humane method becomes available.

Pp. 8–14.

(b) Precedent forecloses Mr. Bucklew’s argument that methods

posing a “substantial and particular risk of grave suffering” when

applied to a particular inmate due to his “unique medical condition”

should be considered “categorically” cruel. Because distinguishing

between constitutionally permissible and impermissible degrees of

pain is a necessarily comparative exercise, the Court held in Glossip,

identifying an available alternative is “a requirement of all Eighth

Amendment method-of-execution claims” alleging cruel pain. 576

U. S., at ___. Mr. Bucklew’s argument is also inconsistent with the

original and historical understanding of the Eighth Amendment on

which Baze and Glossip rest: When it comes to determining whether

a punishment is unconstitutionally cruel because of the pain in-

volved, the law has always asked whether the punishment superadds

pain well beyond what’s needed to effectuate a death sentence. And

answering that question has always involved a comparison with

available alternatives, not an abstract exercise in “categorical” classi-

fication. The substantive meaning of the Eighth Amendment does

not change depending on how broad a remedy the plaintiff chooses to

seek. Mr. Bucklew’s solution also invites pleading games, and there

is little likelihood that an inmate facing a serious risk of pain will be

unable to identify an available alternative. Pp. 14–20.

2. Mr. Bucklew has failed to satisfy the Baze-Glossip test. Pp. 20–

28.

(a) He fails for two independent reasons to present a triable

question on the viability of nitrogen hypoxia as an alternative to the

Cite as: 587 U. S. ____ (2019) 3

Syllabus

State’s lethal injection protocol. First, an inmate must show that his

proposed alternative method is not just theoretically “feasible” but al-

so “ ‘readily implemented,’ ” Glossip, 576 U. S., at ___–___. This

means the inmate’s proposal must be sufficiently detailed to permit a

finding that the State could carry it out relatively easily and reason-

ably quickly. Mr. Bucklew’s proposal falls well short of that stand-

ard. He presented no evidence on numerous questions essential to

implementing his preferred method; instead, he merely pointed to re-

ports from correctional authorities in other States indicating the need

for additional study to develop a nitrogen hypoxia protocol. Second,

the State had a “legitimate” reason for declining to switch from its

current method of execution as a matter of law, Baze, 553 U. S., at

52, namely, choosing not to be the first to experiment with a new,

“untried and untested” method of execution. Id., at 41. Pp. 20–22.

(b) Even if nitrogen hypoxia were a viable alternative, neither of

Mr. Bucklew’s theories shows that nitrogen hypoxia would signifi-

cantly reduce a substantial risk of severe pain. First, his contention

that the State may use painful procedures to administer the lethal

injection, including forcing him to lie flat on his back (which he

claims could impair his breathing even before the pentobarbital is

administered), rests on speculation unsupported, if not affirmatively

contradicted, by the record. And to the extent the record is unclear,

he had ample opportunity to conduct discovery and develop a factual

record concerning the State’s planned procedures. Second, Mr. Buck-

lew contends that while either method will cause him to experience

feelings of suffocation for some period of time before he is rendered

fully unconscious, the duration of that period will be shorter with ni-

trogen than with pentobarbital. But nothing in the record suggests

that he will be capable of experiencing pain for significantly more

time after receiving pentobarbital than he would after receiving ni-

trogen. His claim to the contrary rested on his expert’s testimony re-

garding a study of euthanasia in horses that everyone now agrees the

expert misunderstood or misremembered. Pp. 23–28.

883 F. 3d 1087, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. THOMAS, J., and

KAVANAUGH, J., filed concurring opinions. BREYER, J., filed a dissenting

opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined as to

all but Part III. SOTOMAYOR, J., filed a dissenting opinion.

Cite as: 587 U. S. ____ (2019) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–8151

_________________

RUSSELL BUCKLEW, PETITIONER v. ANNE L.

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT

OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[April 1, 2019]

JUSTICE GORSUCH delivered the opinion of the Court.

Russell Bucklew concedes that the State of Missouri

lawfully convicted him of murder and a variety of other

crimes. He acknowledges that the U. S. Constitution

permits a sentence of execution for his crimes. He accepts,

too, that the State’s lethal injection protocol is constitu-

tional in most applications. But because of his unusual

medical condition, he contends the protocol is unconstitu-

tional as applied to him. Mr. Bucklew raised this claim for

the first time less than two weeks before his scheduled

execution. He received a stay of execution and five years

to pursue the argument, but in the end neither the district

court nor the Eighth Circuit found it supported by the law

or evidence. Now, Mr. Bucklew asks us to overturn those

judgments. We can discern no lawful basis for doing so.

I

A

In 1996, when Stephanie Ray announced that she wanted

to end their relationship, Mr. Bucklew grew violent. He

cut her jaw, punched her in the face, and threatened her

2 BUCKLEW v. PRECYTHE

Opinion of the Court

with a knife. Frightened to remain in the home they had

shared, Ms. Ray sought refuge with her children in Mi-

chael Sanders’ nearby residence. But then one night Mr.

Bucklew invaded that home. Bearing a pistol in each

hand, he shot Mr. Sanders in the chest; fired at Mr. Sand-

ers’ 6-year-old son (thankfully, he missed); and pistol-

whipped Ms. Ray, this time breaking her jaw. Then Mr.

Bucklew handcuffed Ms. Ray, drove her to a secluded spot,

and raped her at gunpoint. After a trooper spotted Mr.

Bucklew, a shootout followed and he was finally arrested.

While all this played out, Mr. Sanders bled to death. As a

coda, Mr. Bucklew escaped from jail while awaiting trial

and attacked Ms. Ray’s mother with a hammer before he

could be recaptured.

After a decade of litigation, Mr. Bucklew was seemingly

out of legal options. A jury had convicted him of murder

and other crimes and recommended a death sentence,

which the court had imposed. His direct appeal had

proved unsuccessful. State v. Bucklew, 973 S. W. 2d 83

(Mo. 1998), cert. denied, 525 U. S. 1082 (1999). Separate

rounds of state and federal post-conviction proceedings

also had failed to yield relief. Bucklew v. State, 38 S. W.

3d 395 (Mo.), cert. denied, 534 U. S. 964 (2001); Bucklew v.

Luebbers, 436 F. 3d 1010 (CA8), cert. denied, 549 U. S.

1079 (2006).

B

As it turned out, though, Mr. Bucklew’s case soon be-

came caught up in a wave of litigation over lethal injection

procedures. Like many States, Missouri has periodically

sought to improve its administration of the death penalty.

Early in the 20th century, the State replaced hanging with

the gas chamber. Later in the century, it authorized the

use of lethal injection as an alternative to lethal gas. By

the time Mr. Bucklew’s post-conviction proceedings ended,

Missouri’s protocol called for lethal injections to be carried

Cite as: 587 U. S. ____ (2019) 3

Opinion of the Court

out using three drugs: sodium thiopental, pancuronium

bromide, and potassium chloride. And by that time, too,

various inmates were in the process of challenging the

constitutionality of the State’s protocol and others like it

around the country. See Taylor v. Crawford, 457 F. 3d

902 (CA8 2006); Note, A New Test for Evaluating Eighth

Amendment Challenges to Lethal Injections, 120 Harv.

L. Rev. 1301, 1304 (2007) (describing flood of lethal injec-

tion lawsuits around 2006 that “severely constrained

states’ ability to carry out executions”); Denno, The Lethal

Injection Quandary: How Medicine Has Dismantled the

Death Penalty, 76 Ford. L. Rev. 49, 102–116 (2007).

Ultimately, this Court answered these legal challenges

in Baze v. Rees, 553 U. S. 35 (2008). Addressing Ken-

tucky’s similar three-drug protocol, THE CHIEF JUSTICE,

joined by JUSTICE ALITO and Justice Kennedy, concluded

that a State’s refusal to alter its lethal injection protocol

could violate the Eighth Amendment only if an inmate

first identified a “feasible, readily implemented” alterna-

tive procedure that would “significantly reduce a substan-

tial risk of severe pain.” Id., at 52. JUSTICE THOMAS,

joined by Justice Scalia, thought the protocol passed mus-

ter because it was not intended “to add elements of terror,

pain, or disgrace to the death penalty.” Id., at 107.

JUSTICE BREYER reached the same result because he saw

no evidence that the protocol created “a significant risk of

unnecessary suffering.” Id., at 113. And though Justice

Stevens objected to the continued use of the death penalty,

he agreed that petitioners’ evidence was insufficient. Id.,

at 87. After this Court decided Baze, it denied review in a

case seeking to challenge Missouri’s similar lethal injec-

tion protocol. Taylor v. Crawford, 487 F. 3d 1072 (2007),

cert. denied, 553 U. S. 1004 (2008).

But that still was not the end of it. Next, Mr. Bucklew

and other inmates unsuccessfully challenged Missouri’s

protocol in state court, alleging that it had been adopted in

4 BUCKLEW v. PRECYTHE

Opinion of the Court

contravention of Missouri’s Administrative Procedure Act.

Middleton v. Missouri Dept. of Corrections, 278 S. W. 3d

193 (Mo.), cert. denied, 556 U. S. 1255 (2009). They also

unsuccessfully challenged the protocol in federal court,

this time alleging it was pre-empted by various federal

statutes. Ringo v. Lombardi, 677 F. 3d 793 (CA8 2012).

And Mr. Bucklew sought to intervene in yet another law-

suit alleging that Missouri’s protocol violated the Eighth

Amendment because unqualified personnel might botch its

administration. That lawsuit failed too. Clemons v. Craw-

ford, 585 F. 3d 1119 (CA8 2009), cert. denied, 561 U. S.

1026 (2010).

While all this played out, pressure from anti-death-

penalty advocates induced the company that manufac-

tured sodium thiopental to stop supplying it for use in

executions. As a result, the State was unable to proceed

with executions until it could change its lethal injection

protocol again. This it did in 2012, prescribing the use of a

single drug, the sedative propofol. Soon after that, Mr.

Bucklew and other inmates sued to invalidate this new

protocol as well, alleging that it would produce excruciat-

ing pain and violate the Eighth Amendment on its face.

After the State revised the protocol in 2013 to use the

sedative pentobarbital instead of propofol, the inmates

amended their complaint to allege that pentobarbital

would likewise violate the Constitution.

C

Things came to a head in 2014. With its new protocol in

place and the necessary drugs now available, the State

scheduled Mr. Bucklew’s execution for May 21. But 12

days before the execution Mr. Bucklew filed yet another

lawsuit, the one now before us. In this case, he presented

an as-applied Eighth Amendment challenge to the State’s

new protocol. Whether or not it would cause excruciating

pain for all prisoners, as his previous lawsuit alleged, Mr.

Cite as: 587 U. S. ____ (2019) 5

Opinion of the Court

Bucklew now contended that the State’s protocol would

cause him severe pain because of his particular medical

condition. Mr. Bucklew suffers from a disease called

cavernous hemangioma, which causes vascular tumors—

clumps of blood vessels—to grow in his head, neck, and

throat. His complaint alleged that this condition could

prevent the pentobarbital from circulating properly in his

body; that the use of a chemical dye to flush the intrave-

nous line could cause his blood pressure to spike and his

tumors to rupture; and that pentobarbital could interact

adversely with his other medications.

These latest protocol challenges yielded mixed results.

The district court dismissed both the inmates’ facial chal-

lenge and Mr. Bucklew’s as-applied challenge. But, at Mr.

Bucklew’s request, this Court agreed to stay his execution

until the Eighth Circuit could hear his appeal. Bucklew v.

Lombardi, 572 U. S. 1131 (2014). Ultimately, the Eighth

Circuit affirmed the dismissal of the facial challenge. Zink

v. Lombardi, 783 F. 3d 1089 (en banc) (per curiam), cert.

denied, 576 U. S. ___ (2015). Then, turning to the as-

applied challenge and seeking to apply the test set forth

by the Baze plurality, the court held that Mr. Bucklew’s

complaint failed as a matter of law to identify an alterna-

tive procedure that would significantly reduce the risks he

alleged would flow from the State’s lethal injection proto-

col. Yet, despite this dispositive shortcoming, the court of

appeals decided to give Mr. Bucklew another chance to

plead his case. The court stressed that, on remand before

the district court, Mr. Bucklew had to identify “at the

earliest possible time” a feasible, readily implemented

alternative procedure that would address those risks.

Bucklew v. Lombardi, 783 F. 3d 1120, 1127–1128 (2015)

(en banc).

Shortly after the Eighth Circuit issued its judgment,

this Court decided Glossip v. Gross, 576 U. S. ___ (2015),

rejecting a challenge to Oklahoma’s lethal injection proto-

6 BUCKLEW v. PRECYTHE

Opinion of the Court

col. There, the Court clarified that THE CHIEF JUSTICE’s

plurality opinion in Baze was controlling under Marks v.

United States, 430 U. S. 188 (1977). In doing so, it reaf-

firmed that an inmate cannot successfully challenge a

method of execution under the Eighth Amendment unless

he identifies “an alternative that is ‘feasible, readily im-

plemented, and in fact significantly reduces a substantial

risk of severe pain.’ ” 576 U. S., at ___–___ (slip op., at 12–

13). JUSTICE THOMAS, joined by Justice Scalia, reiterated

his view that the Eighth Amendment “prohibits only those

methods of execution that are deliberately designed to

inflict pain,” but he joined the Court’s opinion because it

correctly explained why petitioners’ claim failed even

under the controlling opinion in Baze. Glossip, 576 U. S.,

at ___ (concurring opinion) (slip op., at 1) (internal quota-

tion marks and alterations omitted).

D

Despite the Eighth Circuit’s express instructions, when

Mr. Bucklew returned to the district court in 2015 he still

refused to identify an alternative procedure that would

significantly reduce his alleged risk of pain. Instead, he

insisted that inmates should have to carry this burden

only in facial, not as-applied, challenges. Finally, after the

district court gave him “one last opportunity,” App. 30, Mr.

Bucklew filed a fourth amended complaint in which he

claimed that execution by “lethal gas” was a feasible and

available alternative method that would significantly

reduce his risk of pain. Id., at 42. Mr. Bucklew later

clarified that the lethal gas he had in mind was nitrogen,

which neither Missouri nor any other State had ever used

to carry out an execution.

The district court allowed Mr. Bucklew “extensive dis-

covery” on his new proposal. 883 F. 3d 1087, 1094 (CA8

2018). But even at the close of discovery in 2017, the

district court still found the proposal lacking and granted

Cite as: 587 U. S. ____ (2019) 7

Opinion of the Court

the State’s motion for summary judgment. By this point

in the proceedings, Mr. Bucklew’s contentions about the

pain he might suffer had evolved considerably. He no

longer complained about circulation of the drug, the use of

dye, or adverse drug interactions. Instead, his main claim

now was that he would experience pain during the period

after the pentobarbital started to take effect but before it

rendered him fully unconscious. According to his expert,

Dr. Joel Zivot, while in this semiconscious “twilight stage”

Mr. Bucklew would be unable to prevent his tumors from

obstructing his breathing, which would make him feel like

he was suffocating. Dr. Zivot declined to say how long this

twilight stage would last. When pressed, however, he

referenced a study on euthanasia in horses. He claimed

that the horses in the study had displayed some amount of

brain activity, as measured with an electroencephalogram

(or EEG), for up to four minutes after they were given a

large dose of pentobarbital. Based on Dr. Zivot’s testi-

mony, the district court found a triable issue as to whether

there was a “substantial risk” that Mr. Bucklew would

“experience choking and an inability to breathe for up to

four minutes” if he were executed by lethal injection. App.

827. Even so, the court held, Mr. Bucklew’s claim failed

because he had produced no evidence that his proposed

alternative, execution by nitrogen hypoxia, would signifi-

cantly reduce that risk.

This time, a panel of the Eighth Circuit affirmed. The

panel held that Mr. Bucklew had produced no evidence

that the risk of pain he alleged “would be substantially

reduced by use of nitrogen hypoxia instead of lethal injec-

tion as the method of execution.” 883 F. 3d, at 1096.

Judge Colloton dissented, arguing that the evidence raised

a triable issue as to whether nitrogen gas would “render

Bucklew insensate more quickly than pentobarbital.” Id.,

at 1099. The full court denied rehearing en banc over a

dissent by Judge Kelly, who maintained that, while pris-

8 BUCKLEW v. PRECYTHE

Opinion of the Court

oners pursuing facial challenges to a state execution pro-

tocol must plead and prove an alternative method of exe-

cution under Baze and Glossip, prisoners like Mr. Bucklew

who pursue as-applied challenges should not have to bear

that burden. 885 F. 3d 527, 528 (2018).

On the same day Mr. Bucklew was scheduled to be

executed, this Court granted him a second stay of execu-

tion. 583 U. S. ___ (2018). We then agreed to hear his

case to clarify the legal standards that govern an as-

applied Eighth Amendment challenge to a State’s method

of carrying out a death sentence. 584 U. S. ___ (2018).

II

We begin with Mr. Bucklew’s suggestion that the test

for lethal injection protocol challenges announced in Baze

and Glossip should govern only facial challenges, not as-

applied challenges like his. In evaluating this argument,

we first examine the original and historical understanding

of the Eighth Amendment and our precedent in Baze and

Glossip. We then address whether, in light of those au-

thorities, it would be appropriate to adopt a different

constitutional test for as-applied claims.

A

The Constitution allows capital punishment. See Glos-

sip, 576 U. S., at ___–___ (slip op., at 2–4); Baze, 553 U. S.,

at 47. In fact, death was “the standard penalty for all

serious crimes” at the time of the founding. S. Banner,

The Death Penalty: An American History 23 (2002) (Ban-

ner). Nor did the later addition of the Eighth Amendment

outlaw the practice. On the contrary—the Fifth Amend-

ment, added to the Constitution at the same time as the

Eighth, expressly contemplates that a defendant may be

tried for a “capital” crime and “deprived of life” as a pen-

alty, so long as proper procedures are followed. And the

First Congress, which proposed both Amendments, made a

Cite as: 587 U. S. ____ (2019) 9

Opinion of the Court

number of crimes punishable by death. See Act of Apr. 30,

1790, 1 Stat. 112. Of course, that doesn’t mean the Ameri-

can people must continue to use the death penalty. The

same Constitution that permits States to authorize capital

punishment also allows them to outlaw it. But it does

mean that the judiciary bears no license to end a debate

reserved for the people and their representatives.

While the Eighth Amendment doesn’t forbid capital

punishment, it does speak to how States may carry out

that punishment, prohibiting methods that are “cruel and

unusual.” What does this term mean? At the time of the

framing, English law still formally tolerated certain pun-

ishments even though they had largely fallen into disuse—

punishments in which “terror, pain, or disgrace [were]

superadded” to the penalty of death. 4 W. Blackstone,

Commentaries on the Laws of England 370 (1769). These

included such “[d]isgusting” practices as dragging the

prisoner to the place of execution, disemboweling, quarter-

ing, public dissection, and burning alive, all of which

Blackstone observed “savor[ed] of torture or cruelty.” Ibid.

Methods of execution like these readily qualified as

“cruel and unusual,” as a reader at the time of the Eighth

Amendment’s adoption would have understood those

words. They were undoubtedly “cruel,” a term often de-

fined to mean “[p]leased with hurting others; inhuman;

hard-hearted; void of pity; wanting compassion; savage;

barbarous; unrelenting,” 1 S. Johnson, A Dictionary of the

English Language (4th ed. 1773), or “[d]isposed to give

pain to others, in body or mind; willing or pleased to tor-

ment, vex or afflict; inhuman; destitute of pity, compassion

or kindness,” 1 N. Webster, An American Dictionary of the

English Language (1828). And by the time of the found-

ing, these methods had long fallen out of use and so had

become “unusual.” 4 Blackstone, supra, at 370; Banner

76; Baze, 553 U. S., at 97 (THOMAS, J., concurring in

judgment); see also Stinneford, The Original Meaning of

10 BUCKLEW v. PRECYTHE

Opinion of the Court

“Unusual”: The Eighth Amendment as a Bar to Cruel

Innovation, 102 Nw. U. L. Rev. 1739, 1770–1771, 1814

(2008) (observing that Americans in the late 18th and

early 19th centuries described as “unusual” governmental

actions that had “fall[en] completely out of usage for a long

period of time”).

Contemporary evidence confirms that the people who

ratified the Eighth Amendment would have understood it

in just this way. Patrick Henry, for one, warned that

unless the Constitution was amended to prohibit “cruel

and unusual punishments,” Congress would be free to

inflict “tortures” and “barbarous” punishments. 3 Debates

on the Federal Constitution 447–448 (J. Elliot 2d ed.

1891). Many early commentators likewise described the

Eighth Amendment as ruling out “the use of the rack or

the stake, or any of those horrid modes of torture devised

by human ingenuity for the gratification of fiendish pas-

sion.” J. Bayard, A Brief Exposition of the Constitution of

the United States 140 (1833); see B. Oliver, The Rights of

an American Citizen 186 (1832) (the Eighth Amendment

prohibits such “barbarous and cruel punishments” as

“[b]reaking on the wheel, flaying alive, rending asunder

with horses, . . . maiming, mutilating and scourging to

death”). Justice Story even remarked that he thought the

prohibition of cruel and unusual punishments likely “un-

necessary” because no “free government” would ever au-

thorize “atrocious” methods of execution like these. 3 J.

Story, Commentaries on the Constitution of the United

States §1896, p. 750 (1833).

Consistent with the Constitution’s original understand-

ing, this Court in Wilkerson v. Utah, 99 U. S. 130 (1879),

permitted an execution by firing squad while observing

that the Eighth Amendment forbade the gruesome meth-

ods of execution described by Blackstone “and all others in

the same line of unnecessary cruelty.” Id., at 135–136. A

few years later, the Court upheld a sentence of death by

Cite as: 587 U. S. ____ (2019) 11

Opinion of the Court

electrocution while observing that, though electrocution

was a new mode of punishment and therefore perhaps

could be considered “unusual,” it was not “cruel” in the

constitutional sense: “[T]he punishment of death is not

cruel, within the meaning of that word as used in the

Constitution. [Cruelty] implies . . . something inhuman

and barbarous, something more than the mere extin-

guishment of life.” In re Kemmler, 136 U. S. 436, 447

(1890).

It’s instructive, too, to contrast the modes of execution

the Eighth Amendment was understood to forbid with

those it was understood to permit. At the time of the

Amendment’s adoption, the predominant method of execu-

tion in this country was hanging. Glossip, 576 U. S., at

___ (slip op., at 2). While hanging was considered more

humane than some of the punishments of the Old World,

it was no guarantee of a quick and painless death. “Many

and perhaps most hangings were evidently painful for the

condemned person because they caused death slowly,” and

“[w]hether a hanging was painless or painful seems to

have been largely a matter of chance.” Banner 48, 170.

The force of the drop could break the neck and sever the

spinal cord, making death almost instantaneous. But that

was hardly assured given the techniques that prevailed at

the time. More often it seems the prisoner would die from

loss of blood flow to the brain, which could produce uncon-

sciousness usually within seconds, or suffocation, which

could take several minutes. Id., at 46–47; J. Laurence,

The History of Capital Punishment 44–46 (1960); Gard-

ner, Executions and Indignities: An Eighth Amendment

Assessment of Methods of Inflicting Capital Punishment,

39 Ohio St. L. J. 96, 120 (1978). But while hanging could

and often did result in significant pain, its use “was virtu-

ally never questioned.” Banner 170. Presumably that was

because, in contrast to punishments like burning and

disemboweling, hanging wasn’t “intended to be painful”

12 BUCKLEW v. PRECYTHE

Opinion of the Court

and the risk of pain involved was considered “unfortunate

but inevitable.” Ibid.; see also id., at 48.

What does all this tell us about how the Eighth

Amendment applies to methods of execution? For one

thing, it tells us that the Eighth Amendment does not

guarantee a prisoner a painless death—something that, of

course, isn’t guaranteed to many people, including most

victims of capital crimes. Glossip, 576 U. S., at ___ (slip

op., at 4). Instead, what unites the punishments the

Eighth Amendment was understood to forbid, and distin-

guishes them from those it was understood to allow, is

that the former were long disused (unusual) forms of

punishment that intensified the sentence of death with a

(cruel) “ ‘superadd[ition]’ ” of “ ‘terror, pain, or disgrace.’ ”

Baze, 553 U. S., at 48; accord, id., at 96 (THOMAS, J., con-

curring in judgment).

This Court has yet to hold that a State’s method of

execution qualifies as cruel and unusual, and perhaps

understandably so. Far from seeking to superadd terror,

pain, or disgrace to their executions, the States have often

sought more nearly the opposite, exactly as Justice Story

predicted. Through much of the 19th century, States

experimented with technological innovations aimed at

making hanging less painful. See Banner 170–177. In the

1880s, following the recommendation of a commission

tasked with finding “ ‘the most humane and practical

method known to modern science of carrying into effect

the sentence of death,’ ” the State of New York replaced

hanging with electrocution. Glossip, 576 U. S., at ___ (slip

op., at 2). Several States followed suit in the “ ‘ “belief that

electrocution is less painful and more humane than hang-

ing.” ’ ” Ibid. Other States adopted lethal gas after con-

cluding it was “ ‘the most humane [method of execution]

known to modern science.’ ” Ibid. And beginning in the

1970s, the search for less painful modes of execution led

many States to switch to lethal injection. Id., at ___ (slip

Cite as: 587 U. S. ____ (2019) 13

Opinion of the Court

op., at 3); Baze, 553 U. S., at 42, 62; see also Banner 178–

181, 196–197, 297. Notably, all of these innovations oc-

curred not through this Court’s intervention, but through

the initiative of the people and their representatives.

Still, accepting the possibility that a State might try to

carry out an execution in an impermissibly cruel and

unusual manner, how can a court determine when a State

has crossed the line? THE CHIEF JUSTICE’s opinion in

Baze, which a majority of the Court held to be controlling

in Glossip, supplies critical guidance. It teaches that

where (as here) the question in dispute is whether the

State’s chosen method of execution cruelly superadds pain

to the death sentence, a prisoner must show a feasible and

readily implemented alternative method of execution that

would significantly reduce a substantial risk of severe

pain and that the State has refused to adopt without a

legitimate penological reason. See Glossip, 576 U. S., at

___–___ (slip op., at 12–13); Baze, 553 U. S., at 52. Glossip

left no doubt that this standard governs “all Eighth

Amendment method-of-execution claims.” 576 U. S., at

___ (slip op., at 1).

In reaching this conclusion, Baze and Glossip recognized

that the Eighth Amendment “does not demand the avoid-

ance of all risk of pain in carrying out executions.” Baze,

553 U. S., at 47. To the contrary, the Constitution affords

a “measure of deference to a State’s choice of execution

procedures” and does not authorize courts to serve as

“boards of inquiry charged with determining ‘best practices’

for executions.” Id., at 51–52, and nn. 2–3. The Eighth

Amendment does not come into play unless the risk of

pain associated with the State’s method is “substantial

when compared to a known and available alternative.”

Glossip, 576 U. S., at ___ (slip op., at 13); see Baze, 553

U. S., at 61. Nor do Baze and Glossip suggest that tradi-

tionally accepted methods of execution—such as hanging,

the firing squad, electrocution, and lethal injection—are

14 BUCKLEW v. PRECYTHE

Opinion of the Court

necessarily rendered unconstitutional as soon as an argu-

ably more humane method like lethal injection becomes

available. There are, the Court recognized, many legiti-

mate reasons why a State might choose, consistent with

the Eighth Amendment, not to adopt a prisoner’s pre-

ferred method of execution. See, e.g., Glossip, 576 U. S., at

___–___ (slip op., at 13–14) (a State can’t be faulted for

failing to use lethal injection drugs that it’s unable to

procure through good-faith efforts); Baze, 553 U. S., at 57

(a State has a legitimate interest in selecting a method it

regards as “preserving the dignity of the procedure”); id.,

at 66 (ALITO, J., concurring) (a State isn’t required to

modify its protocol in ways that would require the in-

volvement of “persons whose professional ethics rules or

traditions impede their participation”).

As we’ve seen, two Members of the Court whose votes

were essential to the judgment in Glossip argued that

establishing cruelty consistent with the Eighth Amend-

ment’s original meaning demands slightly more than the

majority opinion there (or the Baze plurality opinion it

followed) suggested. Instead of requiring an inmate to

establish that a State has unreasonably refused to alter its

method of execution to avoid a risk of unnecessary pain,

JUSTICE THOMAS and Justice Scalia contended that an

inmate must show that the State intended its method to

inflict such pain. See Glossip, 576 U. S., at ___ (THOMAS,

J., concurring) (slip op., at 1); Baze, 553 U. S., at 94–107

(THOMAS, J., concurring in judgment). But revisiting that

debate isn’t necessary here because, as we’ll see, the State

was entitled to summary judgment in this case even under

the more forgiving Baze-Glossip test. See Part III, infra.

B

Before turning to the application of Baze and Glossip,

however, we must confront Mr. Bucklew’s argument that a

different standard entirely should govern as-applied chal-

Cite as: 587 U. S. ____ (2019) 15

Opinion of the Court

lenges like his. He admits that Baze and Glossip supply

the controlling test in facial challenges to a State’s chosen

method of execution. But he suggests that he should not

have to prove an alternative method of execution in his as-

applied challenge because “certain categories” of punish-

ment are “manifestly cruel . . . without reference to any

alternative methods.” Brief for Petitioner 41–42 (internal

quotation marks omitted). He points to “ ‘burning at the

stake, crucifixion, [and] breaking on the wheel’ ” as exam-

ples of “categorically” cruel methods. Ibid. And, he says,

we should use this case to add to the list of “categorically”

cruel methods any method that, as applied to a particular

inmate, will pose a “substantial and particular risk of

grave suffering” due to the inmate’s “unique medical

condition.” Id., at 44.

The first problem with this argument is that it’s fore-

closed by precedent. Glossip expressly held that identify-

ing an available alternative is “a requirement of all Eighth

Amendment method-of-execution claims” alleging cruel

pain. 576 U. S., at ___ (slip op., at 1) (emphasis added).

And just as binding as this holding is the reasoning under-

lying it. Distinguishing between constitutionally permis-

sible and impermissible degrees of pain, Baze and Glossip

explained, is a necessarily comparative exercise. To decide

whether the State has cruelly “superadded” pain to the

punishment of death isn’t something that can be accom-

plished by examining the State’s proposed method in a

vacuum, but only by “compar[ing]” that method with a

viable alternative. Glossip, 576 U. S., at ___ (slip op., at

13); see Baze, 553 U. S., at 61. As Mr. Bucklew acknowl-

edges when speaking of facial challenges, this comparison

“provides the needed metric” to measure whether the

State is lawfully carrying out an execution or inflicting

“gratuitous” pain. Brief for Petitioner 42–43. Yet it is

that very comparison and needed metric Mr. Bucklew

would now have us discard. Nor does he offer some per-

16 BUCKLEW v. PRECYTHE

Opinion of the Court

suasive reason for overturning our precedent. To the

contrary, Mr. Bucklew simply repeats the same argument

the principal dissent offered and the Court expressly and

thoughtfully rejected in Glossip. Just as Mr. Bucklew

argues here, the dissent there argued that “certain meth-

ods of execution” like “burning at the stake” should be

declared “categorically off-limits.” And just as Mr. Buck-

lew submits here, the dissent there argued that any other

“intolerably painful” method of execution should be added

to this list. 576 U. S., at ___–___ (SOTOMAYOR, J., dissent-

ing) (slip op., at 23–24). Mr. Bucklew’s submission, thus,

amounts to no more than a headlong attack on precedent.

Mr. Bucklew’s argument fails for another independent

reason: It is inconsistent with the original and historical

understanding of the Eighth Amendment on which Baze

and Glossip rest. As we’ve seen, when it comes to deter-

mining whether a punishment is unconstitutionally cruel

because of the pain involved, the law has always asked

whether the punishment “superadds” pain well beyond

what’s needed to effectuate a death sentence. And an-

swering that question has always involved a comparison

with available alternatives, not some abstract exercise in

“categorical” classification. At common law, the ancient

and barbaric methods of execution Mr. Bucklew cites were

understood to be cruel precisely because—by comparison

to other available methods—they went so far beyond what

was needed to carry out a death sentence that they could

only be explained as reflecting the infliction of pain for

pain’s sake. Meanwhile, hanging carried with it an

acknowledged and substantial risk of pain but was not

considered cruel because that risk was thought—by com-

parison to other known methods—to involve no more pain

than was reasonably necessary to impose a lawful death

sentence. See supra, at 9–12.

What does the principal dissent have to say about all

this? It acknowledges that Glossip’s comparative re-

Cite as: 587 U. S. ____ (2019) 17

Opinion of the Court

quirement helps prevent facial method-of-execution claims

from becoming a “backdoor means to abolish” the death

penalty. Post, at 8 (opinion of BREYER, J.). But, the dis-

sent assures us, there’s no reason to worry that as-applied

method-of-execution challenges might be used that way.

This assurance misses the point. As we’ve explained, the

alternative-method requirement is compelled by our un-

derstanding of the Constitution, not by mere policy

concerns.

With that, the dissent is left only to rehash the same

argument that Mr. Bucklew offers. The dissent insists

that some forms of execution are just categorically cruel.

Post, at 10–11. At first and like others who have made

this argument, the dissent offers little more than intuition

to support its conclusion. Ultimately, though, even it bows

to the necessity of something firmer. If a “comparator is

needed” to assess whether an execution is cruel, the dis-

sent tells us, we should compare the pain likely to follow

from the use of a lethal injection in this case with the

pain-free use of lethal injections in mine-run cases. Post,

at 10. But that’s just another way of saying executions

must always be carried out painlessly because they can be

carried out painlessly most of the time, a standard the

Constitution has never required and this Court has re-

jected time and time again. Supra, at 12. To determine

whether the State is cruelly superadding pain, our prece-

dents and history require asking whether the State had

some other feasible and readily available method to carry

out its lawful sentence that would have significantly re-

duced a substantial risk of pain.

That Mr. Bucklew and the dissent fail to respect the

force of our precedents—or to grapple with the under-

standing of the Constitution on which our precedents

rest—is more than enough reason to reject their view that

as-applied and facial challenges should be treated differ-

ently. But it turns out their position on this score suffers

18 BUCKLEW v. PRECYTHE

Opinion of the Court

from further problems too—problems that neither Mr.

Bucklew nor the dissent even attempts to address.

Take this one. A facial challenge is really just a claim

that the law or policy at issue is unconstitutional in all its

applications. So classifying a lawsuit as facial or as-

applied affects the extent to which the invalidity of the

challenged law must be demonstrated and the correspond-

ing “breadth of the remedy,” but it does not speak at all to

the substantive rule of law necessary to establish a consti-

tutional violation. Citizens United v. Federal Election

Comm’n, 558 U. S. 310, 331 (2010). Surely it would be

strange for the same words of the Constitution to bear

entirely different meanings depending only on how broad

a remedy the plaintiff chooses to seek. See Gross v. United

States, 771 F. 3d 10, 14–15 (CADC 2014) (“ ‘[T]he substan-

tive rule of law is the same for both [facial and as-applied]

challenges’ ”); Brooklyn Legal Servs. Corp. v. Legal Servs.

Corp., 462 F. 3d 219, 228 (CA2 2006) (the facial/as-applied

distinction affects “the extent to which the invalidity of a

statute need be demonstrated,” not “the substantive rule of

law to be used”). And surely, too, it must count for some-

thing that we have found not a single court decision in

over 200 years suggesting that the Eighth Amendment’s

meaning shifts in this way. To the contrary, our precedent

suggests just the opposite. In the related context of an

Eighth Amendment challenge to conditions of confine-

ment, we have seen “no basis whatever” for applying a

different legal standard to “deprivations inflicted upon all

prisoners” and those “inflicted upon particular prisoners.”

Wilson v. Seiter, 501 U. S. 294, 299, n. 1 (1991).

Here’s yet another problem with Mr. Bucklew’s argu-

ment: It invites pleading games. The line between facial

and as-applied challenges can sometimes prove “amor-

phous,” Elgin v. Department of Treasury, 567 U. S. 1, 15

(2012), and “not so well defined,” Citizens United, 558

U. S., at 331. Consider an example. Suppose an inmate

Cite as: 587 U. S. ____ (2019) 19

Opinion of the Court

claims that the State’s lethal injection protocol violates the

Eighth Amendment when used to execute anyone with a

very common but not quite universal health condition.

Should such a claim be regarded as facial or as-applied?

In another context, we sidestepped a debate over how to

categorize a comparable claim—one that neither sought

“to strike [the challenged law] in all its applications” nor

was “limited to plaintiff ’s particular case”—by concluding

that “[t]he label is not what matters.” Doe v. Reed, 561

U. S. 186, 194 (2010). To hold now, for the first time, that

choosing a label changes the meaning of the Constitution

would only guarantee a good deal of litigation over labels,

with lawyers on each side seeking to classify cases to

maximize their tactical advantage. Unless increasing the

delay and cost involved in carrying out executions is the

point of the exercise, it’s hard to see the benefit in placing

so much weight on what can be an abstruse exercise.

Finally, the burden Mr. Bucklew must shoulder under

the Baze-Glossip test can be overstated. An inmate seek-

ing to identify an alternative method of execution is not

limited to choosing among those presently authorized by a

particular State’s law. Missouri itself seemed to

acknowledge as much at oral argument. Tr. of Oral Arg.

65. So, for example, a prisoner may point to a well-

established protocol in another State as a potentially

viable option. Of course, in a case like that a court would

have to inquire into the possibility that one State pos-

sessed a legitimate reason for declining to adopt the proto-

col of another. See supra, at 13–14. And existing state

law might be relevant to determining the proper proce-

dural vehicle for the inmate’s claim. See Hill v.

McDonough, 547 U. S. 573, 582–583 (2006) (if the relief

sought in a 42 U. S. C. §1983 action would “foreclose the

State from implementing the [inmate’s] sentence under

present law,” then “recharacterizing a complaint as an

action for habeas corpus might be proper”). But the

20 BUCKLEW v. PRECYTHE

Opinion of the Court

Eighth Amendment is the supreme law of the land, and

the comparative assessment it requires can’t be controlled

by the State’s choice of which methods to authorize in its

statutes. In light of this, we see little likelihood that an

inmate facing a serious risk of pain will be unable to iden-

tify an available alternative—assuming, of course, that

the inmate is more interested in avoiding unnecessary

pain than in delaying his execution.

III

Having (re)confirmed that anyone bringing a method of

execution claim alleging the infliction of unconstitution-

ally cruel pain must meet the Baze-Glossip test, we can now

turn to the question whether Mr. Bucklew is able to sat-

isfy that test. Has he identified a feasible and readily im-

plemented alternative method of execution the State

refused to adopt without a legitimate reason, even though

it would significantly reduce a substantial risk of severe

pain? Because the case comes to us after the entry of

summary judgment, this appeal turns on whether Mr.

Bucklew has shown a genuine issue of material fact war-

ranting a trial.

A

We begin with the question of a proposed alternative

method. Through much of this case and despite many

opportunities, Mr. Bucklew refused to identify any alter-

native method of execution, choosing instead to stand on

his argument that Baze and Glossip’s legal standard

doesn’t govern as-applied challenges like his (even after

the Eighth Circuit rejected that argument). Only when

the district court warned that his continued refusal to

abide this Court’s precedents would result in immediate

dismissal did Mr. Bucklew finally point to nitrogen hy-

poxia. The district court then afforded Mr. Bucklew “exten-

sive discovery” to explore the viability of that alternative.

Cite as: 587 U. S. ____ (2019) 21

Opinion of the Court

883 F. 3d, at 1094. But even after all that, we conclude

Mr. Bucklew has failed for two independent reasons to

present a triable question on the viability of nitrogen

hypoxia as an alternative to the State’s lethal injection

protocol.

First, an inmate must show that his proposed alterna-

tive method is not just theoretically “ ‘feasible’ ” but also

“ ‘readily implemented.’ ” Glossip, 576 U. S., at ___–___

(slip op., at 12–13). This means the inmate’s proposal

must be sufficiently detailed to permit a finding that the

State could carry it out “relatively easily and reasonably

quickly.” McGehee v. Hutchinson, 854 F. 3d 488, 493 (CA8

2017); Arthur v. Commissioner, Ala. Dept. of Corrections,

840 F. 3d 1268, 1300 (CA11 2016). Mr. Bucklew’s bare-

bones proposal falls well short of that standard. He has

presented no evidence on essential questions like how

nitrogen gas should be administered (using a gas chamber,

a tent, a hood, a mask, or some other delivery device); in

what concentration (pure nitrogen or some mixture of

gases); how quickly and for how long it should be intro-

duced; or how the State might ensure the safety of the

execution team, including protecting them against the risk

of gas leaks. Instead of presenting the State with a read-

ily implemented alternative method, Mr. Bucklew (and the

principal dissent) point to reports from correctional au-

thorities in other States indicating that additional study is

needed to develop a protocol for execution by nitrogen

hypoxia. See App. 697 (Oklahoma grand jury report rec-

ommending that the State “retain experts” and conduct

“further research” to “determine how to carry out the

sentence of death by this method”); id., at 736 (report of

Louisiana Dept. of Public Safety & Corrections stating

that “[r]esearch . . . is ongoing” to develop a nitrogen hy-

poxia protocol). That is a proposal for more research, not

the readily implemented alternative that Baze and Glossip

require.

22 BUCKLEW v. PRECYTHE

Opinion of the Court

Second, and relatedly, the State had a “legitimate”

reason for declining to switch from its current method of

execution as a matter of law. Baze, 553 U. S., at 52.

Rather than point to a proven alternative method, Mr.

Bucklew sought the adoption of an entirely new method—

one that had “never been used to carry out an execution”

and had “no track record of successful use.” McGehee, 854

F. 3d, at 493. But choosing not to be the first to experi-

ment with a new method of execution is a legitimate rea-

son to reject it. In Baze we observed that “no other State

ha[d] adopted” the one-drug protocol the inmates sought

and they had “proffered no study showing” their one-drug

protocol would be as effective and humane as the State’s

existing three-drug protocol. 553 U. S., at 57. Under

those circumstances, we held as a matter of law that

Kentucky’s refusal to adopt the inmates’ proffered protocol

could not “constitute a violation of the Eighth Amend-

ment.” Ibid. The Eighth Amendment prohibits States

from dredging up archaic cruel punishments or perhaps

inventing new ones, but it does not compel a State to

adopt “untried and untested” (and thus unusual in the

constitutional sense) methods of execution. Id., at 41.1

——————

1 While this case has been pending, a few States have authorized

nitrogen hypoxia as a method of execution. See 2018 Ala. Acts no.

2018–353 (allowing condemned inmates to elect execution by nitrogen

hypoxia); 2017 Miss. Laws ch. 406, p. 905 (authorizing execution by

nitrogen hypoxia only if lethal injection is held unconstitutional or is

otherwise unavailable); 2015 Okla. Sess. Laws ch. 75, p. 244 (same). In

March 2018, officials in Oklahoma announced that, due to the unavail-

ability of lethal injection drugs, the State would use nitrogen gas for its

executions going forward. See Williams, Oklahoma Proposes To Use

Nitrogen Gas for Executions by Asphyxiation, N. Y. Times, Mar. 15,

2018, p. A22. But Oklahoma has so far been unable to find a manufac-

turer willing to sell it a gas delivery device for use in executions. See

Clay, State Not Ready for Executions, The Oklahoman, Jan. 27, 2019,

p. A1. To date, no one in this case has pointed us to an execution in

this country using nitrogen gas.

Cite as: 587 U. S. ____ (2019) 23

Opinion of the Court

B

Even if a prisoner can carry his burden of showing a

readily available alternative, he must still show that it

would significantly reduce a substantial risk of severe

pain. Glossip, 576 U. S., at ___ (slip op., at 13); Baze, 553

U. S., at 52. A minor reduction in risk is insufficient; the

difference must be clear and considerable. Over the

course of this litigation, Mr. Bucklew’s explanation why

nitrogen hypoxia meets this standard has evolved signifi-

cantly. But neither of the two theories he has advanced in

this Court turns out to be supported by record evidence.

First, Mr. Bucklew points to several risks that he alleges

could result from use of the State’s lethal injection protocol

that would not be present if the State used nitrogen gas.

For example, he says the execution team might try to insert

an IV into one of his peripheral veins, which could cause

the vein to rupture; or the team might instead use an

allegedly painful “cut-down” procedure to access his femo-

ral vein. He also says that he might be forced to lie flat on

his back during the execution, which could impair his

breathing even before the pentobarbital is administered.

And he says the stress from all this could cause his tumors

to bleed, further impairing his breathing. These risks, we

may assume, would not exist if Mr. Bucklew were exe-

cuted by his preferred method of nitrogen hypoxia.

The problem with all of these contentions is that they

rest on speculation unsupported, if not affirmatively con-

tradicted, by the evidence in this case. Nor does the prin-

cipal dissent contend otherwise. So, for example, uncon-

troverted record evidence indicates that the execution

team will have discretion to adjust the gurney to whatever

position is in Mr. Bucklew’s best medical interests. 883

F. 3d, at 1092, n. 3; App. 531. Moreover, the State agreed

in the district court that it would not try to place an IV in

Mr. Bucklew’s compromised peripheral veins. Id., at 820;

see Brief for Appellant in No. 17–3052 (CA8), p. 7. And,

24 BUCKLEW v. PRECYTHE

Opinion of the Court

assuming without granting that using a cut-down would

raise issues under the Eighth Amendment—but see Noon-

er v. Norris, 594 F. 3d 592, 604 (CA8 2010) (holding oth-

erwise)—the State’s expert, Dr. Michael Antognini, testi-

fied without contradiction that it should be possible to

place an IV in Mr. Bucklew’s femoral vein without using a

cut-down procedure, App. 350. Mr. Bucklew responds by

pointing to the warden’s testimony that he once saw medi-

cal staff perform a cut-down as part of an execution; but

there’s no evidence that what the warden saw was an

attempt to access a femoral vein, as opposed to some other

vein.

Moreover, to the extent the record is unclear on any of

these issues, Mr. Bucklew had ample opportunity to con-

duct discovery and develop a factual record concerning

exactly what procedures the State planned to use. He

failed to do so—presumably because the thrust of his

constitutional claim was that any attempt to execute him

via lethal injection would be unconstitutional, regardless

of the specific procedures the State might use. As the

court of appeals explained: “Having taken the position

that any lethal injection procedure would violate the

Eighth Amendment,” Mr. Bucklew “made no effort to

determine what changes, if any, the [State] would make in

applying its lethal injection protocol” to him, and he “never

urged the district court to establish a suitable fact-finding

procedure . . . to define the as-applied lethal injection

protocol [the State] intends to use.” 883 F. 3d, at 1095–

1096.2

——————

2 While the district court allowed discovery on many other matters,

Mr. Bucklew protests that it did not permit him to learn the identities

of the lethal injection execution team members, to depose them, or to

inquire into their qualifications, training, and experience. Like the

Eighth Circuit, we see no abuse of discretion in the district court’s

discovery rulings. As the district court explained, Mr. Bucklew argues

that there is no way he may be constitutionally executed by lethal

Cite as: 587 U. S. ____ (2019) 25

Opinion of the Court

Second, Mr. Bucklew contends that the lethal injection

itself will expose him to a substantial risk of severe pain

that could be eliminated by adopting his preferred method.

He claims that once the sedative pentobarbital is injected

he will “lose the ability to manage” the tumors in his

airway and, as a result, will experience a “sense of suffoca-

tion” for some period of time before the State’s sedative

renders him fully unconscious. Brief for Petitioner 12–13.

“It is during this in-between twilight stage,” according to

his expert, Dr. Zivot, “that Mr. Bucklew is likely to experi-

ence prolonged feelings of suffocation and excruciating

pain.” App. 234. Mr. Bucklew admits that similar feelings

of suffocation could occur with nitrogen, the only differ-

ence being the potential duration of the so-called “twilight

stage.” He contends that with nitrogen the stage would

last at most 20 to 30 seconds, while with pentobarbital it

could last up to several minutes.

But here again the record contains insufficient evidence

to permit Mr. Bucklew to avoid summary judgment. For

starters, in the courts below Mr. Bucklew maintained he

would have trouble managing his airway only if he were

forced to lie supine, which (as we’ve explained) the evi-

dence shows he won’t be. (The dissenters don’t address

this point.) But even indulging his new claim that he will

have this difficulty regardless of position, he still has

failed to present colorable evidence that nitrogen would

significantly reduce his risk of pain. We can assume for

argument’s sake that Mr. Bucklew is correct that with

nitrogen the twilight stage would last 20 to 30 seconds.

The critical question, then, is how long that period might

last with pentobarbital. The State’s expert, Dr. Antognini,

testified that pentobarbital, too, would render Mr. Buck-

——————

injection, even with modifications to the State’s lethal injection proto-

col. And in a case like that, discovery into such granular matters as

who administers the protocol simply is not relevant.

26 BUCKLEW v. PRECYTHE

Opinion of the Court

lew fully unconscious and incapable of experiencing pain

within 20 to 30 seconds. Id., at 299–301, 432–433. Dr.

Zivot disagreed; but when he was asked how long he

thought the twilight stage would last with pentobarbital,

his testimony was evasive. Eventually, he said his “num-

ber would be longer than” 20 to 30 seconds, but he de-

clined to say how much longer. Id., at 195. Instead, he

referenced a 2015 study on euthanasia in horses. He said

the study found that when horses were given a large dose

of pentobarbital (along with other drugs), they exhibited

“isoelectric EEG”—a complete absence of detectable brain

activity—after 52 to 240 seconds. Id., at 194–196. The

district court assumed Dr. Zivot meant that “pain might

be felt until measurable brain activity ceases” and that,

extrapolating from the horse study, it might take up to

four minutes for pentobarbital to “induc[e] a state in

which [Mr. Bucklew] could no longer sense that he is

choking or unable to breathe.” The district court acknowl-

edged, however, that this might be “a generous interpreta-

tion of Dr. Zivot’s testimony.” Id., at 822, and n. 5.

In fact, there’s nothing in the record to suggest that Mr.

Bucklew will be capable of experiencing pain for signifi-

cantly more than 20 to 30 seconds after being injected

with pentobarbital. For one thing, Mr. Bucklew’s lawyer

now admits that Dr. Zivot “crossed up the numbers” from

the horse study. Tr. of Oral Arg. 7–8, 11–12. The study

actually reported that the horses displayed isoelectric

EEG between 2 and 52 seconds after infusion of pentobar-

bital was completed, with an average time of less than 24

seconds. App. 267. So if anything, the horse study ap-

pears to bolster Dr. Antognini’s time estimate. For another

thing, everyone now also seems to acknowledge that

isoelectric EEG is the wrong measure. Dr. Zivot never

claimed the horses were capable of experiencing pain until

they reached isoelectric EEG. And Mr. Bucklew’s lawyer

now concedes that doctors perform major surgery on hu-

Cite as: 587 U. S. ____ (2019) 27

Opinion of the Court

man patients with measurable EEG readings, which

strongly suggests that Mr. Bucklew will be insensible to

pain before reaching isoelectric EEG. Tr. of Oral Arg. 9.

Finally, the record evidence even allows the possibility

that nitrogen could increase the risk of pain. Because Dr.

Zivot declined to testify about the likely effects of nitrogen

gas, Mr. Bucklew must rely on Dr. Antognini’s testimony.

And while Dr. Antognini did say he thought nitrogen’s

“onset of action” could be “relatively fast,” App. 458, he

added that the effects of nitrogen could vary depending on

exactly how it would be administered—information Mr.

Bucklew hadn’t provided. Indeed, he stated that “depend-

ing on . . . how it’s used, you might get more suffering from

nitrogen gas than you would have” from the State’s cur-

rent protocol. Id., at 460–461.

Of course, the principal dissent maintains that Dr.

Zivot’s testimony supports an inference that pentobarbital

might cause Mr. Bucklew to suffer for a prolonged period.

But its argument rests on a number of mistakes about the

record. For example, the dissent points to Dr. Zivot’s

remark that, with pentobarbital, “ ‘the period of time

between receiving the injection and death could range over

a few minutes to many minutes.’ ” Post, at 4, 6 (quoting

App. 222). From this, the dissent concludes that Mr.

Bucklew may suffer for “up to several minutes.” Post, at 1,

6, 9. But everyone agrees that the relevant question isn’t

how long it will take for Mr. Bucklew to die, but how long

he will be capable of feeling pain. Seeking to address the

problem, the dissent next points to another part of Dr.

Zivot’s testimony and says it means Mr. Bucklew could

experience pain during the entire time between injection

and death. Post, at 6, 13 (quoting App. 222). But the

dissent clips the relevant quotation. As the full quotation

makes clear, Dr. Zivot claimed that Mr. Bucklew might be

unable to “maintain the integrity of his airway” until he

died—but he carefully avoided claiming that Mr. Bucklew

28 BUCKLEW v. PRECYTHE

Opinion of the Court

would be capable of feeling pain until he died.3 To avoid

this problem, the dissent quotes Dr. Zivot’s assertions that

pentobarbital might not produce “ ‘rapid unconsciousness’ ”

and that Mr. Bucklew’s suffering with pentobarbital could

be “ ‘prolonged.’ ” Post, at 4–6, 13 (quoting App. 233–234).

But Dr. Zivot’s statements here, too, fail to specify how

long Mr. Bucklew is likely to be able to feel pain. The

hard fact is that, when Dr. Zivot was finally compelled to

offer a view on this question, his only response was to

refer to the horse study. Id., at 195–196. The dissent’s

effort to suggest that Dr. Zivot “did not rely exclusively or

even heavily on that study,” post, at 7, is belied by (among

other things) Mr. Bucklew’s own brief in this Court, which

asserted that the twilight stage during which he might

feel pain could last “between 52 and 240 seconds,” based

entirely on a citation of Dr. Zivot’s incorrect testimony

about the horse study. Brief for Petitioner 13.

In sum, even if execution by nitrogen hypoxia were a

feasible and readily implemented alternative to the State’s

chosen method, Mr. Bucklew has still failed to present any

evidence suggesting that it would significantly reduce his

risk of pain. For that reason as well, the State was enti-

tled to summary judgment on Mr. Bucklew’s Eighth

Amendment claim.4

——————

3 Here’s the full quotation, with the portion quoted by the dissent

underlined:

“As a result of his inability to maintain the integrity of his airway

for the period of time beginning with the injection of the Pento-

barbital solution and ending with Mr. Bucklew’s death several

minutes to as long as many minutes later, Mr. Bucklew would be

highly likely to experience feelings of ‘air hunger’ and the excruci-

ating pain of prolonged suffocation resulting from the complete

obstruction of his airway by the large vascular tumor.” App. 222.

4 The State contends that Mr. Bucklew’s claim should fail for yet an-

other reason: because, in the State’s view, the evidence does not show

that he is very likely to suffer “ ‘severe pain’ ” cognizable under the

Cite as: 587 U. S. ____ (2019) 29

Opinion of the Court

IV

“Both the State and the victims of crime have an im-

portant interest in the timely enforcement of a sentence.”

Hill, 547 U. S., at 584. Those interests have been frus-

trated in this case. Mr. Bucklew committed his crimes

more than two decades ago. He exhausted his appeal and

separate state and federal habeas challenges more than a

decade ago. Yet since then he has managed to secure

delay through lawsuit after lawsuit. He filed his current

challenge just days before his scheduled execution. That

suit has now carried on for five years and yielded two

appeals to the Eighth Circuit, two 11th-hour stays of

execution, and plenary consideration in this Court. And

despite all this, his suit in the end amounts to little more

than an attack on settled precedent, lacking enough evi-

dence even to survive summary judgment—and on not just

one but many essential legal elements set forth in our case

law and required by the Constitution’s original meaning.

The people of Missouri, the surviving victims of Mr.

Bucklew’s crimes, and others like them deserve better.

Even the principal dissent acknowledges that “the long

delays that now typically occur between the time an of-

fender is sentenced to death and his execution” are “exces-

sive.” Post, at 16. The answer is not, as the dissent incon-

gruously suggests, to reward those who interpose delay

with a decree ending capital punishment by judicial fiat.

Post, at 18. Under our Constitution, the question of capi-

tal punishment belongs to the people and their represent-

atives, not the courts, to resolve. The proper role of courts

is to ensure that method-of-execution challenges to law-

——————

Eighth Amendment. Glossip v. Gross, 576 U. S. ___, ___ (2015) (slip

op., at 13) (quoting Baze v. Rees, 553 U. S. 35, 52 (2008); emphasis

added). We have no need, however, to address that argument because

(as explained above) Mr. Bucklew fails even to show that a feasible and

readily available alternative could significantly reduce the pain he

alleges.

30 BUCKLEW v. PRECYTHE

Opinion of the Court

fully issued sentences are resolved fairly and expeditiously.

Courts should police carefully against attempts to use

such challenges as tools to interpose unjustified delay.

Last-minute stays should be the extreme exception, not

the norm, and “the last-minute nature of an application”

that “could have been brought” earlier, or “an applicant’s

attempt at manipulation,” “may be grounds for denial of a

stay.” Hill, 547 U. S., at 584 (internal quotation marks

omitted). So, for example, we have vacated a stay entered

by a lower court as an abuse of discretion where the in-

mate waited to bring an available claim until just 10 days

before his scheduled execution for a murder he had com-

mitted 24 years earlier. See Dunn v. Ray, 586 U. S. ___

(2019).5 If litigation is allowed to proceed, federal courts

“can and should” protect settled state judgments from

“undue interference” by invoking their “equitable powers”

to dismiss or curtail suits that are pursued in a “dilatory”

——————

5 Seeking to relitigate Dunn v. Ray, the principal dissent asserts that

that case involved no undue delay because the inmate “brought his

claim only five days after he was notified” that the State would not

allow his spiritual adviser to be present with him in the execution

chamber itself, although it would allow the adviser to be present on the

other side of a glass partition. Post, at 17. But a state statute listed

“[t]he spiritual adviser of the condemned” as one of numerous individ-

uals who would be allowed to “be present at an execution,” many of

whom—such as “newspaper reporters,” “relatives or friends of the

condemned person,” and “the victim’s immediate family members”—

obviously would not be allowed into the chamber itself. Ala. Code §15–

18–83 (2018). The inmate thus had long been on notice that there was

a question whether his adviser would be allowed into the chamber or

required to remain on the other side of the glass. Yet although he had

been on death row since 1999, and the State had set a date for his

execution on November 6, 2018, he waited until January 23, 2019—just

15 days before the execution—to ask for clarification. He then brought

a claim 10 days before the execution and sought an indefinite stay.

This delay implicated the “strong equitable presumption” that no stay

should be granted “where a claim could have been brought at such a

time as to allow consideration of the merits without requiring entry of a

stay.” Hill v. McDonough, 547 U. S. 573, 584 (2006).

Cite as: 587 U. S. ____ (2019) 31

Opinion of the Court

fashion or based on “speculative” theories. Id., at 584–

585.

*

The judgment of the court of appeals is

Affirmed.

Cite as: 587 U. S. ____ (2019) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–8151

_________________

RUSSELL BUCKLEW, PETITIONER v. ANNE L.

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT

OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[April 1, 2019]

JUSTICE THOMAS, concurring.

I adhere to my view that “a method of execution violates

the Eighth Amendment only if it is deliberately designed

to inflict pain.” Baze v. Rees, 553 U. S. 35, 94 (2008) (opin-

ion concurring in judgment); ante, at 14. Because there is

no evidence that Missouri designed its protocol to inflict

pain on anyone, let alone Russell Bucklew, I would end the

inquiry there. Nonetheless, I join the Court’s opinion in

full because it correctly explains why Bucklew’s claim fails

even under the Court’s precedents.

I write separately to explain why JUSTICE BREYER’s

dissenting opinion does not cast doubt on this standard.

Post, at 15–16. As I explained in Baze, “the evil the

Eighth Amendment targets is intentional infliction of

gratuitous pain.” 553 U. S., at 102 (opinion concurring in

judgment). The historical evidence shows that the Fram-

ers sought to disable Congress from imposing various

kinds of torturous punishments, such as “ ‘gibbeting,’ ”

“burning at the stake,” and “ ‘embowelling alive, behead-

ing, and quartering.’ ” Id., at 95–98 (quoting 4 W. Black-

stone, Commentaries *376 (Blackstone), and S. Banner,

The Death Penalty: An American History 71–72 (2002)).

In England, these aggravated forms of capital punishment

were “ ‘superadded’ ” to increase terror and disgrace for

2 BUCKLEW v. PRECYTHE

THOMAS, J., concurring

“ ‘very atrocious crimes,’ ” such as treason and murder.

See Baze, supra, at 96–97 (quoting 4 Blackstone *376).

The founding generation ratified the Eighth Amendment

to reject that practice, contemplating that capital punish-

ment would continue, but without those punishments

deliberately designed to superadd pain. See Baze, 553

U. S., at 97–98. Under this view, the constitutionality of a

particular execution thus turns on whether the Govern-

ment “deliberately designed” the method of execution “to

inflict pain,” id., at 94, without regard to the subjective

intent of the executioner.

Contrary to JUSTICE BREYER’s suggestion, my view does

not render the Eighth Amendment “a static prohibition”

proscribing only “the same things that it proscribed in the

18th century.” Post, at 15–16. A method of execution not

specifically contemplated at the founding could today be

imposed to “superad[d]” “terror, pain, or disgrace.” 4

Blackstone *376. Thankfully—and consistent with Justice

Story’s view that the Eighth Amendment is “wholly un-

necessary in a free government,” 3 J. Story, Commentaries

on the Constitution of the United States 750 (1833)—

States do not attempt to devise such diabolical punish-

ments. E.g., Baze, supra, at 107 (“Kentucky adopted its

lethal injection protocol in an effort to make capital pun-

ishment more humane”). It is therefore unsurprising that,

despite JUSTICE BREYER’s qualms about the death pen-

alty, e.g., post, at 18, this Court has never held a method of

execution unconstitutional. Because the Court correctly

declines to do so again today, I join in full.

Cite as: 587 U. S. ____ (2019) 1

KAVANAUGH, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–8151

_________________

RUSSELL BUCKLEW, PETITIONER v. ANNE L.

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT

OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[April 1, 2019]

JUSTICE KAVANAUGH, concurring.

When an inmate raises an as-applied constitutional

challenge to a particular method of execution—that is, a

challenge to a method of execution that is constitutional in

general but that the inmate says is very likely to cause

him severe pain—one question is whether the inmate

must identify an available alternative method of execution

that would significantly reduce the risk of severe pain.

Applying our recent decisions in Glossip v. Gross, 576

U. S. ___ (2015), and Baze v. Rees, 553 U. S. 35 (2008)

(plurality opinion), the Court’s answer to that question is

yes. Under those precedents, I agree with the Court’s

holding and join the Court’s opinion.

I write to underscore the Court’s additional holding that

the alternative method of execution need not be author-

ized under current state law—a legal issue that had been

uncertain before today’s decision. See Arthur v. Dunn, 580

U. S. ___, ___–___ (2017) (slip op., at 9–11) (SOTOMAYOR,

J., dissenting from denial of certiorari). Importantly, all

nine Justices today agree on that point. Ante, at 19; post,

at 14 (BREYER, J., dissenting).

As the Court notes, it follows from that additional hold-

ing that the burden of the alternative-method requirement

“can be overstated.” Ante, at 19. Indeed, the Court

2 BUCKLEW v. PRECYTHE

KAVANAUGH, J., concurring

states: “[W]e see little likelihood that an inmate facing a

serious risk of pain will be unable to identify an available

alternative.” Ante, at 20.

In other words, an inmate who contends that a particu-

lar method of execution is very likely to cause him severe

pain should ordinarily be able to plead some alternative

method of execution that would significantly reduce the

risk of severe pain. At oral argument in this Court, the

State suggested that the firing squad would be such an

available alternative, if adequately pleaded. Tr. of Oral

Arg. 63–64 (“He can plead firing squad. . . . Of course, if he

had . . . pleaded firing squad, it’s possible that Missouri

could have executed him by firing squad”). JUSTICE

SOTOMAYOR has likewise explained that the firing squad

is an alternative method of execution that generally causes

an immediate and certain death, with close to zero risk

of a botched execution. See Arthur, 580 U. S., at ___–___

(slip op., at 17–18). I do not here prejudge the question

whether the firing squad, or any other alternative method

of execution, would be a feasible and readily implemented

alternative for every State. See McGehee v. Hutchinson,

854 F. 3d 488, 493–494 (CA8 2017). Rather, I simply

emphasize the Court’s statement that “we see little likeli-

hood that an inmate facing a serious risk of pain will be

unable to identify an available alternative.” Ante, at 20.

Cite as: 587 U. S. ____ (2019) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–8151

_________________

RUSSELL BUCKLEW, PETITIONER v. ANNE L.

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT

OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[April 1, 2019]

JUSTICE BREYER, with whom JUSTICE GINSBURG,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join as to all

but Part III, dissenting.

The Court’s decision in this case raises three questions.

The first is primarily a factual question, namely, whether

Bucklew has established genuine issues of material fact

concerning whether executing him by lethal injection

would cause him excessive suffering. The second is pri-

marily a legal question, namely, whether a prisoner like

Bucklew with a rare medical condition must identify an

alternative method by which the State may execute him.

And the third is a more general question, namely, how to

minimize delays in executing offenders who have been

condemned to death.

I disagree with the majority’s answers to all three ques-

tions. Bucklew cites evidence that executing him by lethal

injection will cause the tumors that grow in his throat to

rupture during his execution, causing him to sputter,

choke, and suffocate on his own blood for up to several

minutes before he dies. That evidence establishes at this

stage of the proceedings that executing Bucklew by lethal

injection risks subjecting him to constitutionally imper-

missible suffering. The majority holds that the State may

execute him anyway. In my view, that holding violates

2 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

the clear command of the Eighth Amendment.

I

I begin with a factual question: whether Bucklew has

established that, because of his rare medical condition, the

State’s current method of execution risks subjecting him to

excessive suffering. See Glossip v. Gross, 576 U. S. ___,

___ (2015) (slip op., at 13) (requiring “a demonstrated risk

of severe pain”); see also Baze v. Rees, 553 U. S. 35, 50

(2008) (plurality opinion) (requiring “a substantial risk of

serious harm” (internal quotation marks omitted)).

There is no dispute as to the applicable summary judg-

ment standard. Because the State moved for summary

judgment, it can prevail if, but only if, it “shows that there

is no genuine dispute as to any material fact.” Fed. Rule

Civ. Proc. 56(a); see also Anderson v. Liberty Lobby, Inc.,

477 U. S. 242, 248 (1986). On review, we examine the

record as a whole, which includes “depositions, documents,

[and] affidavits or declarations.” Rule 56(c). And we must

construe the evidence in the light most favorable to Buck-

lew and draw every justifiable inference in his favor. See

Tolan v. Cotton, 572 U. S. 650, 651 (2014) (per curiam).

A

Bucklew has easily established a genuine issue of mate-

rial fact regarding whether an execution by lethal injec-

tion would subject him to impermissible suffering.

The record indicates that Bucklew suffers from a con-

genital condition known as cavernous hemangioma that

causes tumors filled with blood vessels to grow throughout

his body, including in his head, face, neck, and oral cavity.

The condition is rare. One study estimates that hemangi-

omas in the oral cavity occur in less than one percent of

the population, and that hemangiomas like Bucklew’s

have been identified in five cases. See Wang, Chen, Mo-

jica, & Chen, Cavernous Hemangioma of the Uvula, 8 N.

Cite as: 587 U. S. ____ (2019) 3

BREYER, J., dissenting

Am. J. Med. & Sci. 56, 56–59 (2015).

Tumors grow out of Bucklew’s lip and over his mouth, as

well as on his hard and soft palates. One tumor also

grows directly on Bucklew’s uvula, which has become

“grossly enlarged” as a result. App. 225. (The uvula is the

“pendent fleshy lobe” that hangs from the back of the

throat. Merriam-Webster’s Collegiate Dictionary 1379

(11th ed. 2003).) Bucklew’s tumors obstruct his airway

and make it difficult for him to breathe. His difficulty

breathing is chronic, but is particularly acute when he lies

flat and gravity pulls his engorged uvula into his airway.

He often has to adjust the positioning of his head to pre-

vent his uvula from obstructing his breathing. He sleeps

at a 45-degree angle to facilitate breathing, and he often

wakes up in the middle of the night gasping for air.

Due to the sensitivity of his tumors, even minimal con-

tact may cause them to hemorrhage. He has described

past hemorrhages as “ ‘squirting’ ” or “leaking” blood, and

he states that the first thing he does each morning is to

wipe the blood off his face that leaked from his nose and

mouth as he slept. Bucklew’s condition is progressive and,

due to the risk of significant blood loss caused by the

sensitivity of his tumors, cannot be treated by surgery.

Bucklew maintains that, as a result of this medical

condition, executing him by lethal injection would prove

excruciatingly painful. In support of this claim, Bucklew

submitted sworn declarations and deposition testimony

from an expert witness, Dr. Joel Zivot, an anesthesiologist.

Dr. Zivot provided extensive testimony regarding the pain

that Bucklew would likely endure in an execution by

lethal injection:

 Dr. Zivot testified that in light of “the degree to which

Mr. Bucklew’s airway is compromised by the hemangi-

omas” and “the particular psychological and physical

effects of lethal injection, it is highly likely that Mr.

4 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

Bucklew would be unable to maintain the integrity of

his airway during the time after receiving the lethal

injection and before death.” App. 221.

 Dr. Zivot explained that, as a result of “the highly fri-

able and fragile state of the tissue of Mr. Bucklew’s

mouth and airway,” Bucklew “will likely experience

hemorrhaging and/or the possible rupture of the tu-

mor” on his uvula during his execution. Id., at 222.

 Dr. Zivot added that the “hemorrhaging will further

impede Mr. Bucklew’s airway by filling his mouth and

airway with blood, causing him to choke and cough on

his own blood.” Ibid.

 Dr. Zivot concluded that “it is highly likely that Mr.

Bucklew, given his specific congenital medical condi-

tion, cannot undergo lethal injection without experi-

encing the excruciating pain and suffering” of “suffoca-

tion, convulsions, and visible hemorrhaging.” Id.,

at 223.

Dr. Zivot also testified about the duration of pain to

which an execution by lethal injection would subject Buck-

lew, describing it as “prolonged.” Id., at 234.

 Dr. Zivot stated that the effects of a pentobarbital in-

jection “are highly unlikely to be instantaneous and

the period of time between receiving the injection and

death could range over a few minutes to many

minutes.” Id., at 222 (emphasis added).

 Dr. Zivot “strongly disagree[d] with [the State’s ex-

pert’s] repeated claim that the pentobarbital injection

would result in ‘rapid unconsciousness.’ ” Id., at 233.

Cite as: 587 U. S. ____ (2019) 5

BREYER, J., dissenting

 Dr. Zivot explained that Bucklew “would likely experi-

ence unconsciousness that sets in progressively as the

chemical circulates through his system” and that it

was during this period that Bucklew was “likely to ex-

perience prolonged feelings of suffocation and excruci-

ating pain.” Id., at 233–234.

The State asked the District Court to grant summary

judgment in its favor on the theory that Bucklew failed to

identify a genuine factual issue regarding whether an

execution by lethal injection would be impermissibly

painful. The District Court refused. The court believed

that Bucklew had adequately shown that for up to several

minutes he “could be aware that he is choking or unable to

breathe but be unable to ‘adjust’ his breathing to remedy

the situation.” Id., at 827. Recognizing that the State’s

evidence suggested that Bucklew would experience this

choking sensation for a shorter period, the District Court

concluded that the dispute between the experts was “a

factual dispute that the Court cannot resolve on summary

judgment, and would have to be resolved at trial.” Ibid.

The District Court was right. The evidence, taken in

the light most favorable to Bucklew, creates a genuine

factual issue as to whether Missouri’s lethal injection

protocol would subject him to several minutes of “severe

pain and suffering,” Glossip, 576 U. S., at ___ (slip op., at

13), during which he would choke and suffocate on his own

blood. In my view, executing Bucklew by forcing him to

choke on his grossly enlarged uvula and suffocate on his

blood would exceed “the limits of civilized standards.”

Kennedy v. Louisiana, 554 U. S. 407, 435 (2008) (internal

quotation marks omitted); see also Trop v. Dulles, 356

U. S. 86, 100–101 (1958) (plurality opinion). The experts

dispute whether Bucklew’s execution will prove as unusu-

ally painful as he claims, but resolution of that dispute is a

matter for trial.

6 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

B

The majority, while characterizing the matter as “criti-

cal,” says that there is “nothing in the record to suggest

that Mr. Bucklew will be capable of experiencing pain for

significantly more than 20 to 30 seconds after being in-

jected with pentobarbital.” Ante, at 26. But what about

Dr. Zivot’s testimony that the time between injection and

death “could range over a few minutes to many minutes”?

App. 222. What about Dr. Zivot’s characterization of the

pain involved as “prolonged”? Id., at 234. What about Dr.

Zivot’s “stron[g] disagree[ment] with [the State’s expert’s]

repeated claim that the pentobarbital injection would

result in ‘rapid unconsciousness’ ”? Id., at 233.

The majority construes Dr. Zivot’s testimony to show

only that Bucklew might remain alive for several minutes

after the injection, not that he will be capable of feeling

pain for several minutes after the injection. Ante, at 27.

But immediately following his prediction that the time

between injection and death could range up to many

minutes, Dr. Zivot stated that “beginning with the injec-

tion of the Pentobarbital solution and ending with Mr.

Bucklew’s death several minutes to as long as many

minutes later, Mr. Bucklew would be highly likely to

experience feelings of ‘air hunger’ and the excruciating

pain of prolonged suffocation.” App. 222 (emphasis added).

Dr. Zivot thus testified both that lethal injection

would take up to several minutes to kill Bucklew and that

Bucklew would experience excruciating pain during this

period. And it is not the case, as the majority believes,

that Dr. Zivot “carefully avoided claiming that Mr. Buck-

lew would be capable of feeling pain until he died,” ante, at

28, particularly given that the record must be construed in

the light most favorable to Bucklew.

The majority also justifies its refusal to credit Dr. Zivot’s

testimony on the ground that Dr. Zivot gave a response

during his deposition suggesting that he misinterpreted a

Cite as: 587 U. S. ____ (2019) 7

BREYER, J., dissenting

study of euthanasia in horses. Ante, at 26–27. Bucklew’s

expert, however, did not rely exclusively or even heavily

upon that study; he mentioned it only in response to a

question posed in his deposition. To the contrary, Dr.

Zivot explained that his testimony regarding the pain to

which Bucklew would be subjected was “supported both by

[his] own professional knowledge of how chemicals of this

type are likely to exert their effects in the body as well as

by the terms of Missouri’s Execution Procedure.” App.

222.

Whether any mistake about the importance of a single

study makes all the difference to Bucklew’s case is a mat-

ter not for this Court to decide at summary judgment, but

for the factfinder to resolve at trial. As Judge Colloton

pointed out in dissent below, attacks on the “reliability

and credibility of Dr. Zivot’s opinion,” including “his possi-

ble misreading of the horse study on which he partially

relied,” give rise to factual disputes. See 883 F. 3d 1087,

1099 (CA8 2018). Judge Colloton therefore concluded that

“[t]he district court did not err in concluding that it could

not resolve the dispute between the experts on summary

judgment.” Ibid. I agree.

II

This case next presents a legal question. The Court in

Glossip held in the context of a facial challenge to a State’s

execution protocol that the plaintiffs were required not

only to establish that the execution method gave rise to a

“demonstrated risk of severe pain,” but also to identify a

“known and available” alternative method. 576 U. S., at

___ (slip op., at 13). The Court added that the alternative

must be “feasible, readily implemented, and in fact signifi-

cantly reduc[e] a substantial risk of severe pain.” Id., at

___–___ (slip op., at 12–13) (internal quotation marks

omitted).

I joined the dissent in Glossip, but for present purposes

8 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

I accept the Glossip majority opinion as governing. I

nonetheless do not believe its “alternative method” re-

quirement applies in this case. We “often read general

language in judicial opinion[s] as referring in context to

circumstances similar to the circumstances then before the

Court and not referring to quite different circumstances

that the Court was not then considering.” Illinois v. Lid-

ster, 540 U. S. 419, 424 (2004). And while I acknowledge

that the Court in Glossip spoke in unqualified terms, the

circumstances in Glossip were indeed “different” in rele-

vant respects from the circumstances presented here.

A

The plaintiffs in Glossip undertook an across-the-board

attack against the use of a particular execution method,

which they maintained violated the Eighth Amendment

categorically. In this case, by contrast, Bucklew does not

attack Missouri’s lethal injection protocol categorically, or

even in respect to any execution other than his own.

Instead, he maintains that he is special; that he suffers

from a nearly unique illness; and that, by virtue of that

illness, Missouri’s execution method will be excruciatingly

painful for him even though it would not affect others in

the same way. These differences make a difference.

First, these differences show that the reasons that un-

derlie Glossip’s “alternative method” requirement do not

apply here.

The Glossip Court stressed the importance of preventing

method-of-execution challenges from becoming a backdoor

means to abolish capital punishment in general. The

Court wrote that “because it is settled that capital pun-

ishment is constitutional, it necessarily follows that there

must be a constitutional means of carrying it out.” Glos-

sip, 576 U. S., at ___ (slip op., at 4) (alterations omitted).

The Court added that “we have time and again reaffirmed

that capital punishment is not per se unconstitutional.”

Cite as: 587 U. S. ____ (2019) 9

BREYER, J., dissenting

Id., at ___ (slip op., at 16). And the Court feared that

allowing prisoners to invalidate a State’s method of execu-

tion without identifying an alternative would “effectively

overrule these decisions.” Ibid. But there is no such risk

here. Holding Missouri’s lethal injection protocol uncon-

stitutional as applied to Bucklew—who has a condition

that has been identified in only five people, see supra, at

2–3—would not risk invalidating the death penalty in

Missouri. And, because the State would remain free to

execute prisoners by other permissible means, declining to

extend Glossip’s “alternative method” requirement in this

context would be unlikely to exempt Bucklew or any other

prisoner from the death penalty. Even in the unlikely

event that the State could not identify a permissible alter-

native in a particular case, it would be perverse to treat

that as a reason to execute a prisoner by the method he

has shown to involve excessive suffering.

The Glossip Court, in adopting the “alternative method”

requirement, relied on THE CHIEF JUSTICE’s plurality

opinion in Baze, which discussed the need to avoid “in-

trud[ing] on the role of state legislatures in implementing

their execution procedures.” 553 U. S., at 51; see also

ante, at 13 (we owe “a measure of deference to a State’s

choice of execution procedures” (internal quotation marks

omitted)). But no such intrusion problem exists in a case

like this one. When adopting a method of execution, a

state legislature will rarely consider the method’s applica-

tion to an individual who, like Bucklew, suffers from a

rare disease. It is impossible to believe that Missouri’s

legislature, when adopting lethal injection, considered the

possibility that it would cause prisoners to choke on their

own blood for up to several minutes before they die. Ex-

empting a prisoner from the State’s chosen method of

execution in these circumstances does not interfere with

any legislative judgment.

The Court in Glossip may have also believed that the

10 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

identification of a permissible alternative method of execu-

tion would provide a reference point to assist in determin-

ing how much pain in an execution is too much pain. See

576 U. S., at ___–___ (slip op., at 12–13); Baze, 553 U. S.,

at 47, 51 (plurality opinion); see also ante, at 15 (arguing

that determining the constitutionality of a method of

execution “is a necessarily comparative exercise”). But

there is no need for any such reference point in a case like

this. Bucklew accepts the constitutionality of Missouri’s

chosen execution method as to prisoners who do not share

his medical condition. See Brief for Petitioner 36. We are

informed that this method has been used in 20 executions,

apparently without subjecting prisoners to undue pain.

See Brief for Respondents 5. To the extent that any com-

parator is needed, those executions provide a readymade,

built-in comparator against which a court can measure the

degree of excessive pain Bucklew will suffer.

Second, precedent counsels against extending Glossip.

Neither this Court’s oldest method-of-execution case,

Wilkerson v. Utah, 99 U. S. 130 (1879), nor any subse-

quent decision of this Court until Glossip, held that pris-

oners who challenge a State’s method of execution must

identify an alternative means by which the State may

execute them. To the contrary, in Hill v. McDonough, 547

U. S. 573 (2006), the Court squarely and unanimously

rejected the argument that a prisoner must “identif[y] an

alternative, authorized method of execution.” Id., at 582.

The Court noted that any such requirement would “change

the traditional pleading requirements for §1983 actions,”

which we were not at liberty to do. Ibid. It is thus diffi-

cult to see how the “alternative-method” requirement

could be “compelled by our understanding of the Constitu-

tion,” ante, at 17, even though the Constitution itself never

hints at such a requirement, even though we did not apply

such a requirement in more than a century of method-of-

execution cases, and even though we unanimously rejected

Cite as: 587 U. S. ____ (2019) 11

BREYER, J., dissenting

such a requirement in Hill. And while the Court in Glos-

sip did not understand itself to be bound by Hill, see Glos-

sip, 576 U. S., at ___ (slip op., at 15) (distinguishing Hill

on the theory that Hill merely rejected a heightened

pleading requirement for §1983 suits), the two decisions

remain in considerable tension. Confining Glossip’s “al-

ternative method” requirement to facial challenges would

help to reconcile them.

Third, the troubling implications of today’s ruling pro-

vide the best reason for declining to extend Glossip’s “al-

ternative method” requirement. The majority acknowl-

edges that the Eighth Amendment prohibits States from

executing prisoners by “ ‘horrid modes of torture’ ” such as

burning at the stake. Ante, at 10. But the majority’s

decision permits a State to execute a prisoner who suffers

from a medical condition that would render his execution

no less painful. Bucklew has provided evidence of a seri-

ous risk that his execution will be excruciating and gro-

tesque. The majority holds that the State may execute

him anyway. That decision confirms the warning leveled

by the Glossip dissent—that the Court has converted the

Eighth Amendment’s “categorical prohibition into a condi-

tional one.” 576 U. S., at ___ (opinion of SOTOMAYOR, J.)

(slip op., at 24).

B

Even assuming for argument’s sake that Bucklew must

bear the burden of showing the existence of a “known and

available” alternative method of execution that “signifi-

cantly reduces a substantial risk of severe pain,” id., at ___

(majority opinion) (slip op., at 13) (alteration and internal

quotation marks omitted), Bucklew has satisfied that

burden. The record contains more than enough evidence

on the point to raise genuine and material factual issues

that preclude summary judgment.

Bucklew identified as an alternative method of execu-

12 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

tion the use of nitrogen hypoxia, which is a form of execu-

tion by lethal gas. Missouri law permits the use of this

method of execution. See Mo. Rev. Stat. §546.720 (2002).

Three other States—Alabama, Mississippi, and Okla-

homa—have specifically authorized nitrogen hypoxia as a

method of execution. See ante, at 22, n. 1. And Bucklew

introduced into the record reports from Oklahoma and

Louisiana indicating that nitrogen hypoxia would be

simple and painless. These reports summarized the scien-

tific literature as indicating that there is “no reported

physical discom[fort] associated with inhaling pure nitro-

gen,” App. 742, that the “onset of hypoxia is typically so

subtle that it is unnoticeable to the subject,” id., at 745,

and that nitrogen hypoxia would take an estimated

“seventeen-to-twenty seconds” to render a subject uncon-

scious, id., at 746–747. The Oklahoma study concluded that

nitrogen hypoxia is “the most humane method” of execu-

tion available. Id., at 736. And the Louisiana study stat-

ed that the “[u]se of nitrogen as a method of execution can

assure a quick and painless death of the offender.” Id.,

at 746.

How then can the majority conclude that Bucklew has

failed to identify an alternative method of execution? The

majority finds Bucklew’s evidence inadequate in part

because, in the majority’s view, it does not show that

nitrogen hypoxia will “significantly reduce” Bucklew’s risk

of pain as compared with lethal injection. Ante, at 23. But

the majority does not dispute the evidence suggesting that

nitrogen hypoxia would be “quick and painless” and would

take effect in 20 to 30 seconds. The majority instead

believes that “nothing in the record” suggests that lethal

injection would take longer than nitrogen gas to take

effect. Ante, at 26. As I have already explained, the ma-

jority reaches this conclusion by overlooking considerable

evidence to the contrary—such as Dr. Zivot’s testimony

that Bucklew’s pain would likely prove “prolonged,” App.

Cite as: 587 U. S. ____ (2019) 13

BREYER, J., dissenting

234, that lethal injection would not “result in ‘rapid un-

consciousness,’ ” id., at 233, and that from the time of

injection to “Mr. Bucklew’s death several minutes to as

long as many minutes later, Mr. Bucklew would be highly

likely to experience . . . the excruciating pain of prolonged

suffocation,” id., at 222. In discounting this evidence, the

majority simply fails “to adhere to the axiom that in ruling

on a motion for summary judgment, the evidence of the

nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Tolan, 572 U. S., at 651

(internal quotation marks and alteration omitted).

The majority additionally believes that Bucklew’s evi-

dence fails to show that nitrogen hypoxia would be easy to

implement. Ante, at 21. But the reports from Oklahoma

and Louisiana tell a different story. The Louisiana report

states that nitrogen hypoxia would be “simple to adminis-

ter.” App. 737. The Oklahoma report similarly concludes

that “[d]eath sentences carried out by nitrogen inhalation

would be simple to administer.” Id., at 746; see also id., at

696. The reports explain that nitrogen hypoxia would “not

require the use of a complex medical procedure or phar-

maceutical products,” id., at 747, would “not require the

assistance of licensed medical professionals,” id., 736, and

would require only materials that are “readily available

for purchase,” id., at 739. Further, “[b]ecause the protocol

involved in nitrogen induced hypoxia is so simple, mis-

takes are unlikely to occur.” Id., at 748. And both studies

recommend the development of protocols for actual im-

plementation. See id., at 697 (Oklahoma report recom-

mending development of “a nitrogen hypoxia protocol”);

id., at 736 (Louisiana report noting that although “the

exact protocol” has not been finalized, the report recom-

mends “that hypoxia induced by the inhalation of nitrogen

be considered for adoption”); see also Murphy, Oklahoma

Says It Plans To Use Nitrogen for Executions, USA Today,

Mar. 15, 2018 (quoting the Oklahoma attorney general’s

14 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

statement that nitrogen “will be effective, simple to ad-

minister, easy to obtain and requires no complex medical

procedures”); but cf. ante, at 21.

Presented with evidence such as Bucklew’s, I believe a

State should take at least minimal steps to determine the

feasibility of the proposed alternative. The responsible

state official in this case, however, acknowledged that he

“did not conduct research concerning the feasibility of

lethal gas as a method of execution in Missouri.” Id., at

713; see also Record in No. 14–800 (WD Mo.), Doc. 182–6,

p. 16 (different official acknowledging that, “to be candid,

no, I did not go out and try to find answers to those

questions”).

The majority sensibly recognizes that an inmate seeking

to identify an alternative method of execution “is not

limited to choosing among those presently authorized by a

particular State’s law.” Ante, at 19. But the majority

faults Bucklew for failing to provide guidance about the

administration of nitrogen hypoxia down to the last detail.

The majority believes that Bucklew failed to present evi-

dence “on essential questions” such as whether the nitro-

gen should be administered “using a gas chamber, a tent,

a hood, [or] a mask”; or “in what concentration (pure ni-

trogen or some mixture of gases)” it should be adminis-

tered; or even how the State might “protec[t the execution

team] against the risk of gas leaks.” Ante, at 21.

Perhaps Bucklew did not provide these details. But

Glossip did not refer to any of these requirements; today’s

majority invents them. And to insist upon them is to

create what, in a case like this one, would amount to an

insurmountable hurdle for prisoners like Bucklew. That

hurdle, I fear, could permit States to execute even those

who will endure the most serious pain and suffering,

irrespective of how exceptional their case and irrespective

of how thoroughly they prove it. I cannot reconcile the

majority’s decision with a constitutional Amendment that

Cite as: 587 U. S. ____ (2019) 15

BREYER, J., dissenting

forbids all “cruel and unusual punishments.” Amdt. 8.

C

JUSTICE THOMAS concurs in the majority’s imposition of

an “alternative method” requirement, but would also

permit Bucklew’s execution on the theory that a method of

execution violates the Eighth Amendment “ ‘only if it is

deliberately designed to inflict pain.’ ” Ante, at 1 (concur-

ring opinion) (quoting Baze, 553 U. S., at 94 (THOMAS, J.,

concurring in judgment)). But that is not the proper

standard.

For one thing, JUSTICE THOMAS’ view would make the

constitutionality of a particular execution turn on the

intent of the person inflicting it. But it is not correct that

concededly torturous methods of execution such as burn-

ing alive are impermissible when imposed to inflict pain

but not when imposed for a subjectively different purpose.

To the prisoner who faces the prospect of a torturous

execution, the intent of the person inflicting the punish-

ment makes no difference.

For another thing, we have repeatedly held that the

Eighth Amendment is not a static prohibition that pro-

scribes the same things that it proscribed in the 18th

century. Rather, it forbids punishments that would be

considered cruel and unusual today. The Amendment

prohibits “unnecessary suffering” in the infliction of pun-

ishment, which this Court has understood to prohibit

punishments that are “grossly disproportionate to the

severity of the crime” as well as punishments that do not

serve any “penological purpose.” Estelle v. Gamble, 429

U. S. 97, 103, and n. 7 (1976). The Constitution prohibits

gruesome punishments even though they may have been

common at the time of the founding. Few would dispute,

for example, the unconstitutionality of “a new law provid-

ing public lashing, or branding of the right hand, as pun-

ishment . . . [e]ven if it could be demonstrated unequivo-

16 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

cally that these were not cruel and unusual measures in

1791.” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.

Rev. 849, 861 (1989). The question is not, as JUSTICE

THOMAS maintains, whether a punishment is deliberately

inflicted to cause unnecessary pain, but rather whether we

would today consider the punishment to cause excessive

suffering.

III

Implicitly at the beginning of its opinion and explicitly

at the end, the majority invokes the long delays that now

typically occur between the time an offender is sentenced

to death and his execution. Bucklew was arrested for the

crime that led to his death sentence more than 20 years

ago. And Bucklew’s case is not an anomaly. The average

time between sentencing and execution approaches 18

years and in some instances rises to more than 40 years.

See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip

op., at 18); Reynolds v. Florida, 586 U. S. ___, ___ (2018)

(BREYER, J., statement respecting denial of certiorari) (slip

op., at 2).

I agree with the majority that these delays are exces-

sive. Undue delays in death penalty cases frustrate the

interests of the State and of surviving victims, who have

“an important interest” in seeing justice done quickly.

Hill, 547 U. S., at 584. Delays also exacerbate the suffer-

ing that accompanies an execution itself. Glossip, 576

U. S., at ___–___ (BREYER, J., dissenting) (slip op., at 19–

23). Delays can “aggravate the cruelty of capital punish-

ment” by subjecting the offender to years in solitary

confinement, and delays also “undermine [capital

punishment’s] jurisprudential rationale” by reducing its

deterrent effect and retributive value. Id., at ___, ___ (slip

op., at 28, 32).

The majority responds to these delays by curtailing the

constitutional guarantees afforded to prisoners like Buck-

Cite as: 587 U. S. ____ (2019) 17

BREYER, J., dissenting

lew who have been sentenced to death. By adopting elabo-

rate new rules regarding the need to show an alternative

method of execution, the majority places unwarranted

obstacles in the path of prisoners who assert that an exe-

cution would subject them to cruel and unusual punish-

ment. These obstacles in turn give rise to an unacceptable

risk that Bucklew, or others in yet more difficult circum-

stances, may be executed in violation of the Eighth

Amendment. Given the rarity with which cases like this

one will arise, an unfortunate irony of today’s decision is

that the majority’s new rules are not even likely to im-

prove the problems of delay at which they are directed.

In support of the need to end delays in capital cases, the

majority refers to Dunn v. Ray, 586 U. S. ___ (2019). In

that case, the Court vacated a stay of execution on the

ground that the prisoner brought his claim too late. The

prisoner in that case, however, brought his claim only five

days after he was notified of the policy he sought to chal-

lenge. See id., at ___ (KAGAN, J., dissenting) (slip op., at

3). And in the view of some of us, the prisoner’s claim—

that prisoners of some faiths were entitled to have a min-

ister present at their executions while prisoners of other

faiths were not—raised a serious constitutional question.

See id., at ___ (slip op., at 2) (characterizing the Court’s

decision as “profoundly wrong”). And therein lies the

problem. It might be possible to end delays by limiting

constitutional protections for prisoners on death row. But

to do so would require us to pay too high a constitutional

price.

Today’s majority appears to believe that because “[t]he

Constitution allows capital punishment,” ante, at 8, the

Constitution must allow capital punishment to occur

quickly. In reaching that conclusion the majority echoes

an argument expressed by the Court in Glossip, namely,

that “because it is settled that capital punishment is

constitutional, it necessarily follows that there must be a

18 BUCKLEW v. PRECYTHE

BREYER, J., dissenting

constitutional means of carrying it out.” 576 U. S., at ___

(slip op., at 4) (emphasis added; alterations and internal

quotation marks omitted).

These conclusions do not follow. It may be that there is

no way to execute a prisoner quickly while affording him

the protections that our Constitution guarantees to those

who have been singled out for our law’s most severe sanc-

tion. And it may be that, as our Nation comes to place

ever greater importance upon ensuring that we accurately

identify, through procedurally fair methods, those who

may lawfully be put to death, there simply is no constitu-

tional way to implement the death penalty.

I have elsewhere written about these problems. See id.,

at ___–___ (BREYER, J., dissenting) (slip op., at 29–33).

And I simply conclude here that the law entitles Bucklew

to an opportunity to prove his claim at trial. I note, how-

ever, that this case adds to the mounting evidence that we

can either have a death penalty that avoids excessive

delays and “arguably serves legitimate penological pur-

poses,” or we can have a death penalty that “seeks reliabil-

ity and fairness in the death penalty’s application” and

avoids the infliction of cruel and unusual punishments.

Id., at ___ (slip op., at 32). It may well be that we “cannot

have both.” Ibid.

* * *

I respectfully dissent.

Cite as: 587 U. S. ____ (2019) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–8151

_________________

RUSSELL BUCKLEW, PETITIONER v. ANNE L.

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT

OF CORRECTIONS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[April 1, 2019]

JUSTICE SOTOMAYOR, dissenting.

As I have maintained ever since the Court started down

this wayward path in Glossip v. Gross, 576 U. S. ___

(2015), there is no sound basis in the Constitution for

requiring condemned inmates to identify an available

means for their own executions. JUSTICE BREYER ably

explains why today’s extension of Glossip’s alternative-

method requirement is misguided (even on that prece-

dent’s own terms), and why (with or without that re-

quirement) a trial is needed to determine whether

Missouri’s planned means of executing Russell Bucklew

creates an intolerable risk of suffering in light of his rare

medical condition. I join JUSTICE BREYER’s dissent, except

for Part III. I write separately to address the troubling

dicta with which the Court concludes its opinion.

I

Given the majority’s ominous words about late-arising

death penalty litigation, ante, at 29–30, one might assume

there is some legal question before us concerning delay.

Make no mistake: There is not. The majority’s commen-

tary on once and future stay applications is not only ines-

sential but also wholly irrelevant to its resolution of any

issue before us.

2 BUCKLEW v. PRECYTHE

SOTOMAYOR, J., dissenting

The majority seems to imply that this litigation has

been no more than manipulation of the judicial process for

the purpose of delaying Bucklew’s execution. Ante, at 29.

When Bucklew commenced this case, however, there was

nothing “settled,” ibid., about whether the interaction of

Missouri’s lethal-injection protocol and his rare medical

condition would be tolerable under the Eighth Amend-

ment. At that time, Glossip had not yet been decided,

much less extended to any as-applied challenge like Buck-

lew’s. In granting prior stay requests in this case, we

acted as necessary to ensure sufficient time for sober

review of Bucklew’s claims. The majority laments those

decisions, but there is nothing unusual—and certainly

nothing untoward—about parties pressing, and courts

giving full consideration to, potentially meritorious consti-

tutional claims, even when those claims do not ultimately

succeed.

II

I am especially troubled by the majority’s statement

that “[l]ast-minute stays should be the extreme exception,”

which could be read to intimate that late-occurring stay

requests from capital prisoners should be reviewed with

an especially jaundiced eye. See ante, at 30. Were those

comments to be mistaken for a new governing standard,

they would effect a radical reinvention of established law

and the judicial role.

Courts’ equitable discretion in handling stay requests is

governed by well-established principles. See Nken v.

Holder, 556 U. S. 418, 434 (2009). Courts examine the

stay applicant’s likelihood of success on the merits,

whether the applicant will suffer irreparable injury without

a stay, whether other parties will suffer substantial injury

from a stay, and public interest considerations. Ibid.

It is equally well established that “[d]eath is a punish-

ment different from all other sanctions in kind rather than

Cite as: 587 U. S. ____ (2019) 3

SOTOMAYOR, J., dissenting

degree.” Woodson v. North Carolina, 428 U. S. 280, 303–

304 (1976). For that reason, the equities in a death penalty

case will almost always favor the prisoner so long as he

or she can show a reasonable probability of success on the

merits. See Nken, 556 U. S., at 434 (noting that success

on the merits and irreparable injury “are the most critical”

factors); cf. Glossip, 576 U. S., at ___ (slip op., at 11) (ob-

serving, in a preliminary-injunction posture, that “[t]he

parties agree that this case turns on whether petitioners

are able to establish a likelihood of success on the merits”

and analyzing the case accordingly); accord, id., at ___

(SOTOMAYOR, J., dissenting) (slip op., at 22). This accords

with each court’s “ ‘duty to search for constitutional error

with painstaking care’ ” in capital cases. Kyles v. Whitley,

514 U. S. 419, 422 (1995).

It is of course true that a court may deny relief when a

party has “unnecessarily” delayed seeking it, Nelson v.

Campbell, 541 U. S. 637, 649–650 (2004), and that courts

should not grant equitable relief on clearly “ ‘dilatory,’ ”

“ ‘speculative,’ ” or meritless grounds, ante, at 31 (quoting

Hill v. McDonough, 547 U. S. 573, 584–585 (2006)); see

also Gomez v. United States Dist. Court for Northern Dist.

of Cal., 503 U. S. 653, 654 (1992) (per curiam) (vacating a

stay where an inmate’s unjustified 10-year delay in bring-

ing a claim was an “obvious attempt at manipulation”).

That is hardly the same thing as treating late-arising

claims as presumptively suspect.1

——————

1 A skewed view of the facts caused the majority to misapply these

principles and misuse its “equitable powers,” see ante, at 30, and n. 5,

in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray, 586

U. S. ___ (2019). Even today’s belated explanation from the majority

rests on the mistaken premise that Domineque Ray could have figured

out sooner that Alabama planned to deny his imam access to the

execution chamber. But see id., at ___ (KAGAN, J., dissenting) (slip op.,

at 3) (noting that the governing statute authorized both the inmate’s

imam and the prison’s Christian chaplain to attend the execution, and

that “the prison refused to give Ray a copy of its own practices and

4 BUCKLEW v. PRECYTHE

SOTOMAYOR, J., dissenting

The principles of federalism and finality that the major-

ity invokes are already amply served by other constraints

on our review of state judgments—most notably the Anti-

terrorism and Effective Death Penalty Act of 1996, but

also statutes of limitations and other standard filters for

dilatory claims. We should not impose further constraints

on judicial discretion in this area based on little more than

our own policy impulses. Finality and federalism need no

extra thumb on the scale from this Court, least of all with

a human life at stake.

The only sound approach is for courts to continue to

afford each request for equitable relief a careful hearing

on its own merits. That responsibility is never graver

than when the litigation concerns an impending execution.

See, e.g., Kyles, 514 U. S., at 422; Woodson, 428 U. S., at

303–304. Meritorious claims can and do come to light

even at the eleventh hour, and the cost of cursory review

in such cases would be unacceptably high. See Glossip,

576 U. S., at ___–___ (BREYER, J., dissenting) (slip op., at

21–22) (collecting examples of inmates who came “within

hours or days of execution before later being exonerated”).

A delay, moreover, may be entirely beyond a prisoner’s

control. Execution methods, for example, have been mov-

ing targets subject to considerable secrecy in recent years,

which means that constitutional concerns may surface

only once a State settles on a procedure and communicates

its choice to the prisoner.2 In other contexts, too, fortuity

——————

procedures” that would have clarified the two clergymen’s degrees of

access); Ray v. Commissioner, Ala. Dept. of Corrections, 915 F. 3d 689,

701–703 (CA11 2019).

2 See Zagorski v. Parker, 586 U. S. ___, ___–___ (2018) (SOTOMAYOR,

J., dissenting from denial of application for stay and denial of certio-

rari) (slip op., at 2–3) (describing Tennessee’s recent equivocation about

the availability of its preferred lethal injection protocol); Glossip, 576

U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 29) (noting States’

“scramble” to formulate “new and untested” execution methods);

Sepulvado v. Jindal, 739 F. 3d 716, 717–718 (CA5 2013) (Dennis, J.,

Cite as: 587 U. S. ____ (2019) 5

SOTOMAYOR, J., dissenting

or the imminence of an execution may shake loose consti-

tutionally significant information when time is short.3

There are higher values than ensuring that executions

run on time. If a death sentence or the manner in which it

is carried out violates the Constitution, that stain can

never come out. Our jurisprudence must remain one of

vigilance and care, not one of dismissiveness.

——————

dissenting from denial of rehearing en banc) (describing Louisiana’s

refusal to inform a prisoner of the drugs that would be used to execute

him); Denno, Lethal Injection Chaos Post-Baze, 102 Geo. L. J. 1331,

1376–1380 (2014) (describing increased secrecy around execution

procedures).

3 See Connick v. Thompson, 563 U. S. 51, 55–56, and n. 1 (2011) (in-

tentionally suppressed exculpatory crime lab report discovered a month

before a scheduled execution); Ex parte Braziel, No. WR–72,186–01

(Tex. Crim. App., Dec. 11, 2018), pp. 1–2 (Alcala, J., dissenting) (disclo-

sure by the State of “new information about possible prosecutorial

misconduct” the same day as an execution).