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															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 constitutional in most
applications. But because of his unusual medical condition, he
contends the protocol is unconstitutional 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 with a knife.
Frightened to remain in the home they had shared, Ms. Ray sought
refuge with her children in Michael 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. Sanders’
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 became 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 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 injection 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 Kentucky’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” alternative procedure
that would “significantly reduce a substantial risk of severe
pain.” Id. , at 52. Justice Thomas, joined by Justice Scalia,
thought the protocol passed muster 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 injection
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
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 lawsuit alleging that
Missouri’s protocol violated the Eighth Amendment because
unqualified personnel might botch its administration. That lawsuit
failed too. Clemons v. Crawford , 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 manufactured
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
excruciating 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. 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 intravenous 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
challenge 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 alternative procedure that
would significantly reduce the risks he alleged would flow from the
State’s lethal injection protocol. 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 protocol. 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 reaffirmed that an inmate cannot
successfully challenge a method of execution under the Eighth
Amendment unless he identifies “an alternative that is ‘feasible,
readily implemented, 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 quotation 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 discovery” 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 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 significantly
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 injection 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 prisoners pursuing facial challenges to a state
execution protocol must plead and prove an alternative method of
execution 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 execution. 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 authorities, it would be appropriate to adopt a different
constitutional test for as-applied claims.

															A

															The Constitution allows capital punishment.
See Glossip , 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) (Banner). Nor did the later addition of the Eighth Amendment
outlaw the practice. On the contrary—the Fifth Amendment, 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 number of crimes punishable by death. See Act of
Apr. 30, 1790, 1Stat. 112. Of course, that doesn’t mean the
American 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 punishments 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, quartering, 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 defined 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
torment, 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 founding, 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 “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 passion.” 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
“unnecessary” because no “free government” would ever authorize
“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
understanding, 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 methods 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 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 extinguishment 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 execution 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
unconsciousness usually within seconds, or suffocation, which could
take several minutes. Id. , at 46–47; J. Laurence, The
History of Capital Punishment 44–46 (1960); Gardner, 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 virtually never questioned.” Banner 170.
Presumably that was because, in contrast to punishments like
burning and disemboweling, hanging wasn’t “ intended to be
painful” 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
distinguishes 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., concurring 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
hanging.” ’ ” Ibid. Other States adopted lethal
gas after concluding 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 op., at 3); Baze , 553 U. S.,
at 42, 62; see also Banner 178–181, 196–197, 297. Notably, all of
these innovations occurred 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 avoidance 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 traditionally accepted methods of execution—such as hanging,
the firing squad, electrocution, and lethal injection—are
necessarily rendered unconstitutional as soon as an arguably more
humane method like lethal injection becomes available. There are,
the Court recognized, many legitimate reasons why a State might
choose, consistent with the Eighth Amendment, not to adopt a
prisoner’s preferred 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 involvement 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 Amendment’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 challenges 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 punishment 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 examples
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 foreclosed by precedent. Glossip expressly held that
identifying 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
underlying it. Distinguishing between constitutionally permissible
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 accomplished 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 acknowledges 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 persuasive 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 methods of execution”
like “burning at the stake” should be declared “categorically
off-limits.” And just as Mr. Bucklew 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., dissenting) (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 determining 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 answering 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 comparison 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
requirement 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 dissent 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 understanding 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 dissent 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 precedents 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 reduced a substantial risk of pain.

															That Mr. Bucklew and the dissent fail to respect
the force of our precedents—or to grapple with the understanding 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 differently. But it turns out their position on
this score suffers 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 corresponding “breadth of the remedy,”
but it does not speak at all to the substantive rule of law
necessary to establish a constitutional 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 substantive 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 something 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
confinement, 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
argument: It invites pleading games. The line between facial and
as-applied challenges can sometimes prove “amorphous,” 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 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 seeking 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
possessed a legitimate reason for declining to adopt the protocol
of another. See supra , at 13–14. And existing state law
might be relevant to determining the proper procedural 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 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 identify 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 warranting 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 alternative 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. 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 alternative 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
introduced; 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 authorities 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
recommending 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 hypoxia
protocol). That is a proposal for more research, not the readily
implemented alternative that Baze and Glossip require. 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 experiment with a new method of
execution is a legitimate reason 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 Amendment.” 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 ]

															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 significantly. 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 femoral 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
contradicted, by the evidence in this case. Nor does the principal
dissent contend otherwise. So, for example, uncontroverted 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, assuming without granting that using a cut-down
would raise issues under the Eighth Amendment—but see Nooner v. Norris , 594 F.3d 592, 604 (CA8 2010) (holding
otherwise)—the State’s expert, Dr. Michael Antognini, testified
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 medical 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 conduct
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 ] 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 suffocation” 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 experience prolonged feelings of
suffocation and excruciating pain.” App. 234. Mr. Bucklew admits
that similar feelings of suffocation could occur with nitrogen, the
only difference 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 evidence 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. Bucklew 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 “number would be longer than” 20
to 30 seconds, but he declined 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 acknowledged, however, that this might be “a generous
interpretation 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
significantly 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 pentobarbital was completed, with an average time of less than
24 seconds. App. 267. So if anything, the horse study appears 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
human 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 “depending on
. . . how it’s used, you might get more suffering from
nitrogen gas than you would have” from the State’s current
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 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 entitled to summary judgment on
Mr. Bucklew’s Eighth Amendment claim.[ 4 ]

															IV

															“Both the State and the victims of crime have
an important interest in the timely enforcement of a sentence.” Hill , 547 U. S., at 584. Those interests have been
frustrated 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 evidence 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 offender is sentenced to death
and his execution” are “excessive.” Post , at 16. The answer
is not, as the dissent incongruously 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
capital punishment belongs to the people and their representatives,
not the courts, to resolve. The proper role of courts is to ensure
that method-of-execution challenges to law- 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 inmate waited to
bring an available claim until just 10 days before his scheduled
execution for a murder he had committed 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” fashion
or based on “speculative” theories. Id. , at 584–585.

															*

															The judgment of the court of appeals is

															Affirmed. Notes 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
unavailability 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 manufacturer 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. 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 injection, even with modifications to the
State’s lethal injection protocol. And in a case like that,
discovery into such granular matters as who administers the
protocol simply is not relevant. 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
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 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 another reason: because, in
the State’s view, the evidence does not show that he is very likely
to suffer “ ‘ severe pain’ ” cognizable under the
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. 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). 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) (opinion 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 Framers sought to disable
Congress from imposing various kinds of torturous punishments, such
as “ ‘gibbeting,’ ” “burning at the stake,” and
“ ‘embowelling alive, beheading, and quartering.’ ” Id. , at 95–98 (quoting 4 W. Blackstone, 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 “ ‘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
punishment 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 Government
“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 unnecessary 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 punishments. E.g. , Baze , supra , at 107 (“Kentucky adopted
its lethal injection protocol in an effort to make capital
punishment 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. 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
authorized 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 holding that the burden of the alternative-method
requirement “can be overstated.” Ante , at 19. Indeed, the
Court 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
particular 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 likelihood that an inmate facing a serious risk of pain
will be unable to identify an available alternative.” Ante ,
at 20. 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 primarily 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 questions. 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 impermissible suffering. The majority holds that
the State may execute him anyway. In my view, that holding violates
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
judgment 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 Bucklew 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 material fact regarding whether an execution by lethal injection
would subject him to impermissible suffering.

															The record indicates that Bucklew suffers from a
congenital 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 hemangiomas 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, Mojica, & Chen, Cavernous Hemangioma of the Uvula,
8 N. 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 prevent 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 contact 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
hemangiomas” and “the particular psychological and physical effects
of lethal injection, it is highly likely that Mr. 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 friable 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 tumor” 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 condition,
cannot undergo lethal injection without experiencing the
excruciating pain and suffering” of “suffocation, 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
Bucklew, describing it as “prolonged.” Id ., at 234.

															Dr. Zivot stated that the effects of a
pentobarbital injection “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 expert’s] repeated claim that the pentobarbital injection
would result in ‘rapid unconsciousness.’ ” Id ., at
233.

															Dr. Zivot explained that Bucklew “would likely
experience unconsciousness that sets in progressively as the
chemical circulates through his system” and that it was during this
period that Bucklew was “likely to experience prolonged feelings of
suffocation and excruciating 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 unusually painful as he
claims, but resolution of that dispute is a matter for trial.

															B

															The majority, while characterizing the matter
as “critical,” 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 injected 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 injection 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. Bucklew 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
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 matter
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 possible 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 significantly 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 I accept the Glossip majority opinion as
governing. I nonetheless do not believe its “alternative method”
requirement 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. Lidster , 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 relevant 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 underlie 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 punishment is
constitutional, it necessarily follows that there must be a
constitutional means of carrying it out.” Glossip , 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.” Id. , at
___ (slip op., at 16). And the Court feared that allowing prisoners
to invalidate a State’s method of execution without identifying an
alternative would “effectively overrule these decisions.” Ibid. But there is no such risk here. Holding Missouri’s
lethal injection protocol unconstitutional 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 alternative 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
“intrud[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 application 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.
Exempting 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 identification of a permissible alternative
method of execution would provide a reference point to assist in
determining 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 comparator 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 subsequent decision of this Court
until Glossip , held that prisoners 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 difficult to see how
the “alternative-method” requirement could be “compelled by our
understanding of the Constitution,” 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 such a requirement in Hill . And while the Court in Glossip did not understand itself to be bound by Hill , see Glossip , 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 “alternative method” requirement to facial
challenges would help to reconcile them. Third , the troubling implications of
today’s ruling provide the best reason for declining to extend Glossip ’s “alternative method” requirement. The majority
acknowledges 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 serious risk that his execution
will be excruciating and grotesque. 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 conditional
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 “significantly
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
execution the use of nitrogen hypoxia, which is a form of execution
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
scientific literature as indicating that there is “no reported
physical discom[fort] associated with inhaling pure nitrogen,” 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 unconscious, id., at 746–747. The Oklahoma
study concluded that nitrogen hypoxia is “the most humane method”
of execution available. Id., at 736. And the Louisiana study
stated 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
majority 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. 234, that
lethal injection would not “result in ‘rapid
unconsciousness,’ ” 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 evidence 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 administer.” 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 pharmaceutical 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, mistakes are unlikely to occur.” Id .,
at 748. And both studies recommend the development of protocols for
actual implementation. See id., at 697 (Oklahoma report
recommending development of “a nitrogen hypoxia protocol”); id., at 736 (Louisiana report noting that although “the
exact protocol” has not been finalized, the report recommends “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 statement that nitrogen “will be effective,
simple to administer, 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 evidence “on
essential questions” such as whether the nitrogen should be
administered “using a gas chamber, a tent, a hood, [or] a mask”; or
“in what concentration (pure nitrogen or some mixture of gases)” it
should be administered; 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 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 (concurring
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 burning 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 punishment makes no difference.

															For another thing, we have repeatedly held that
the Eighth Amendment is not a static prohibition that proscribes
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 punishment, 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 providing public lashing, or
branding of the right hand, as punishment . . . [e]ven if
it could be demonstrated unequivocally 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
excessive. 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 suffering 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 punishment” 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
Bucklew who have been sentenced to death. By adopting elaborate 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 execution would subject them to cruel
and unusual punishment. These obstacles in turn give rise to an
unacceptable risk that Bucklew, or others in yet more difficult
circumstances, 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 improve 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
challenge. 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
minister 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 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 sanction. 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
constitutional 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, however, 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 purposes,” or we can have a death penalty
that “seeks reliability 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. 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
precedent’s own terms), and why (with or without that requirement)
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 IV. 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 commentary on
once and future stay applications is not only inessential but also
wholly irrelevant to its resolution of any issue before us.

															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 Amendment. At that time, Glossip had not yet been decided, much less extended to any as-applied
challenge like Bucklew’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 constitutional 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 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)
(observing, 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 bringing a claim was an “obvious attempt at
manipulation”). That is hardly the same thing as treating
late-arising claims as presumptively suspect.[ 1 ]

															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
Antiterrorism 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 moving 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 or the imminence of an execution may shake
loose constitutionally 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. Notes 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
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., 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) (intentionally 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)
(disclosure by the State of “new information about possible
prosecutorial misconduct” the same day as an
execution).

Summary: Russell Bucklew, who was convicted of murder and other crimes, argued that Missouri's lethal injection protocol was unconstitutional due to his rare medical condition. Bucklew only raised this claim days before his scheduled execution, resulting in a stay and a five-year delay. The courts ultimately ruled against him, and he sought to overturn their decisions. The Supreme Court, however, found no legal basis to do so and upheld the previous judgments.