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(Slip Opinion) OCTOBER TERM, 2018 1 

Syllabus 

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BUCKLEW v. PRECYTHE, DIRECTOR, MISSOURI 

DEPARTMENT OF CORRECTIONS, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

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

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

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

Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a 

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

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

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

Petitioner Russell Bucklew was convicted of murder and sentenced 

to death. The State of Missouri plans to execute him by lethal injection using a single drug, pentobarbital. Mr. Bucklew presented an

as-applied Eighth Amendment challenge to the State’s lethal injection protocol, alleging that, regardless whether it would cause excruciating pain for all prisoners, it would cause him severe pain because 

of his particular medical condition.

The District Court dismissed his challenge. The Eighth Circuit, 

applying the Baze-Glossip test, remanded the case to allow Mr. Bucklew to identify a feasible, readily implemented alternative procedure 

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

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

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

judgment. The Eighth Circuit affirmed. 

Held: 

1. Baze and Glossip govern all Eighth Amendment challenges,

whether facial or as-applied, alleging that a method of execution inflicts unconstitutionally cruel pain. Pp. 8–20.

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

of capital punishment but does not guarantee a prisoner a painless 
 

 

 

 

2 BUCKLEW v. PRECYTHE 

Syllabus 

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

Eighth Amendment tolerated methods of execution, like hanging,

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

those methods that intensified the death sentence by “superadding” 

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

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

a feasible and readily implemented alternative method that would 

significantly reduce a substantial risk of severe pain and that the 

State has refused to adopt without a legitimate penological reason. 

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

doubt that this standard governs “all Eighth Amendment method-ofexecution claims.” Id., at ___. Baze and Glossip recognized that 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.” 

Baze, 553 U. S., at 51–52. Nor do they suggest that traditionally accepted methods of execution are necessarily rendered unconstitutional as soon as an arguably more humane method becomes available. 

Pp. 8–14.

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

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

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

should be considered “categorically” cruel. Because distinguishing

between constitutionally permissible and impermissible degrees of 

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

identifying an available alternative is “a requirement of all Eighth 

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

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

original and historical understanding of the Eighth Amendment on 

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

a punishment is unconstitutionally cruel because of the pain 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 an abstract exercise in “categorical” classification. The substantive meaning of the Eighth Amendment does

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

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

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

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

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

28. 

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

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

 

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

Syllabus 

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

proposed alternative method is not just theoretically “feasible” but also “ ‘readily implemented,’ ” Glossip, 576 U. S., at ___–___. This 

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

finding that the State could carry it out relatively easily and reasonably quickly. Mr. Bucklew’s proposal falls well short of that standard. He presented no evidence on numerous questions essential to

implementing his preferred method; instead, he merely pointed to reports from correctional authorities in other States indicating the need 

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

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

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

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

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

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

Mr. Bucklew’s theories shows that nitrogen hypoxia would significantly reduce a substantial risk of severe pain. First, his contention 

that the State may use painful procedures to administer the lethal 

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

claims could impair his breathing even before the pentobarbital is 

administered), rests on speculation unsupported, if not affirmatively 

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

he had ample opportunity to conduct discovery and develop a factual 

record concerning the State’s planned procedures. Second, Mr. Bucklew contends that while either method will cause him to experience

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

fully unconscious, the duration of that period will be shorter with nitrogen than with pentobarbital. But nothing in the record suggests 

that he will be capable of experiencing pain for significantly more 

time after receiving pentobarbital than he would after receiving nitrogen. His claim to the contrary rested on his expert’s testimony regarding a study of euthanasia in horses that everyone now agrees the 

expert misunderstood or misremembered. Pp. 23–28. 

883 F. 3d 1087, affirmed. 

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

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

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

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

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

 

_________________ 

_________________ 

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

Opinion of the Court 

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

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

SUPREME COURT OF THE UNITED STATES 

No. 17–8151 

RUSSELL BUCKLEW, PETITIONER v. ANNE L. 

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[April 1, 2019]

 JUSTICE GORSUCH delivered the opinion of the Court. 

Russell Bucklew concedes that the State of Missouri 

lawfully convicted him of murder and a variety of other

crimes. He acknowledges that the U. S. Constitution 

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

too, that the State’s lethal injection protocol is 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 
 

 

2 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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

shared, Ms. Ray sought refuge with her children in 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 pistolwhipped 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 
 

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

Opinion of the Court 

out using three drugs: sodium thiopental, pancuronium 

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

various inmates were in the process of challenging the

constitutionality of the State’s protocol and others like it 

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

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

Amendment Challenges to Lethal Injections, 120 Harv. 

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

 

4 BUCKLEW v. PRECYTHE 

Opinion of the Court 

contravention of Missouri’s Administrative Procedure Act. 

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

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

unsuccessfully challenged the protocol in federal court,

this time alleging it was pre-empted by various federal 

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

And Mr. Bucklew sought to intervene in yet another 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-deathpenalty 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. 
Cite as: 587 U. S. ____ (2019) 5 

Opinion of the Court 

Bucklew now contended that the State’s protocol would 

cause him severe pain because of his particular medical 

condition. Mr. Bucklew suffers from a disease called 

cavernous hemangioma, which causes vascular tumors— 

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

throat. His complaint alleged that this condition could

prevent the pentobarbital from circulating properly in his 

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

6 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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

plurality opinion in Baze was controlling under Marks v. 

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

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

Opinion of the Court 

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

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

pain he might suffer had evolved considerably. He no 

longer complained about circulation of the drug, the use of 

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

now was that he would experience pain during the period 

after the pentobarbital started to take effect but before it 

rendered him fully unconscious. According to his expert, 

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

Mr. Bucklew would be unable to prevent his tumors from 

obstructing his breathing, which would make him feel like

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

twilight stage would last. When pressed, however, he 

referenced a study on euthanasia in horses. He claimed 

that the horses in the study had displayed some amount of 

brain activity, as measured with an electroencephalogram

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

large dose of pentobarbital. Based on Dr. Zivot’s testimony, 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 pris-
 

8 BUCKLEW v. PRECYTHE 

Opinion of the Court 

oners 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 asapplied 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 asapplied 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 penalty, so long as proper procedures are followed. And the 

First Congress, which proposed both Amendments, made a 
Cite as: 587 U. S. ____ (2019) 9 

Opinion of the Court 

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

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

10 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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

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

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

early 19th centuries described as “unusual” governmental

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

period of time”).

Contemporary evidence confirms that the people who

ratified the Eighth Amendment would have understood it

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

unless the Constitution was amended to prohibit “cruel

and unusual punishments,” Congress would be free to 

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

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

1891). Many early commentators likewise described the 

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

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

by human ingenuity for the gratification of fiendish 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 
 

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

Opinion of the Court 

electrocution while observing that, though electrocution 

was a new mode of punishment and therefore perhaps

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

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

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

Constitution. [Cruelty] implies . . . something inhuman

and barbarous, something more than the mere 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” 
 

 

 

12 BUCKLEW v. PRECYTHE 

Opinion of the Court 

and the risk of pain involved was considered “unfortunate 

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

What does all this tell us about how the Eighth

Amendment applies to methods of execution? For one 

thing, it tells us that the Eighth Amendment does not 

guarantee a prisoner a painless death—something that, of 

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

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

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

Eighth Amendment was understood to forbid, and 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 
Cite as: 587 U. S. ____ (2019) 13 

Opinion of the Court 

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

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

14 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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 chal-
 

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

Opinion of the Court 

lenges like his. He admits that Baze and Glossip supply 

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

method of execution. But he suggests that he should not 

have to prove an alternative method of execution in his asapplied 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 per-
 

16 BUCKLEW v. PRECYTHE 

Opinion of the Court 

suasive reason for overturning our precedent. To the 

contrary, Mr. Bucklew simply repeats the same argument

the principal dissent offered and the Court expressly and

thoughtfully rejected in Glossip. Just as Mr. Bucklew 

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

 

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

Opinion of the Court 

quirement helps prevent facial method-of-execution claims 

from becoming a “backdoor means to abolish” the death

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

18 BUCKLEW v. PRECYTHE 

Opinion of the Court 

from further problems too—problems that neither Mr. 

Bucklew nor the dissent even attempts to address.

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

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

applications. So classifying a lawsuit as facial or asapplied 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 
 

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

Opinion of the Court 

claims that the State’s lethal injection protocol violates the 

Eighth Amendment when used to execute anyone with a 

very common but not quite universal health condition. 

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

In another context, we sidestepped a debate over how to

categorize a comparable claim—one that neither sought 

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

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

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

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

choosing a label changes the meaning of the Constitution

would only guarantee a good deal of litigation over labels, 

with lawyers on each side seeking to classify cases to 

maximize their tactical advantage. Unless increasing the 

delay and cost involved in carrying out executions is the 

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

so much weight on what can be an abstruse exercise. 

Finally, the burden Mr. Bucklew must shoulder under 

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

 

 

20 BUCKLEW v. PRECYTHE 

Opinion of the Court 

Eighth Amendment is the supreme law of the land, and 

the comparative assessment it requires can’t be controlled 

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

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

inmate facing a serious risk of pain will be unable to 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 unconstitutionally cruel pain must meet the Baze-Glossip test, we can now 

turn to the question whether Mr. Bucklew is able to satisfy that test. Has he identified a feasible and readily implemented 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 hypoxia. The district court then afforded Mr. Bucklew “extensive discovery” to explore the viability of that alternative. 
Cite as: 587 U. S. ____ (2019) 21 

Opinion of the Court 

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

Mr. Bucklew has failed for two independent reasons to 

present a triable question on the viability of nitrogen

hypoxia as an alternative to the State’s lethal injection

protocol. 

First, an inmate must show that his proposed 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 barebones 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 readily 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. 
 

 

22 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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

reason for declining to switch from its current method of

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

Rather than point to a proven alternative method, Mr.

Bucklew sought the adoption of an entirely new method—

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

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

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

—————— 

1While 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. 
 

 

 

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

Opinion of the Court 

B 

Even if a prisoner can carry his burden of showing a

readily available alternative, he must still show that it 

would significantly reduce a substantial risk of severe 

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

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

difference must be clear and considerable. Over the 

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

nitrogen hypoxia meets this standard has evolved 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 executed 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, 
 

24 BUCKLEW v. PRECYTHE 

Opinion of the Court 

assuming without granting that using a cut-down would 

raise issues under the Eighth Amendment—but see 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 

—————— 

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

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

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

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

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

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

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

 

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

Opinion of the Court 

Second, Mr. Bucklew contends that the lethal injection 

itself will expose him to a substantial risk of severe pain

that could be eliminated by adopting his preferred method.

He claims that once the sedative pentobarbital is injected 

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

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

—————— 

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. 
 

26 BUCKLEW v. PRECYTHE 

Opinion of the Court 

lew fully unconscious and incapable of experiencing pain 

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

Zivot disagreed; but when he was asked how long he

thought the twilight stage would last with pentobarbital, 

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

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

Opinion of the Court 

man patients with measurable EEG readings, which

strongly suggests that Mr. Bucklew will be insensible to 

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

Finally, the record evidence even allows the possibility

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

Zivot declined to testify about the likely effects of nitrogen 

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

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

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

added that the effects of nitrogen could vary depending on

exactly how it would be administered—information Mr. 

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

 

28 BUCKLEW v. PRECYTHE 

Opinion of the Court 

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

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

pentobarbital might not produce “‘rapid unconsciousness’” 

and that Mr. Bucklew’s suffering with pentobarbital could 

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

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

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

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

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

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

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

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

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

asserted that the twilight stage during which he might

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

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

about the horse study. Brief for Petitioner 13. 

In sum, even if execution by nitrogen hypoxia were a

feasible and readily implemented alternative to the State’s

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

evidence suggesting that it would significantly reduce his 

risk of pain. For that reason as well, the State was entitled to summary judgment on Mr. Bucklew’s Eighth 

Amendment claim.4 

—————— 

3Here’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. 

4The 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 
 

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

Opinion of the Court 

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-

—————— 

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

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

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

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

readily available alternative could significantly reduce the pain he

alleges. 
 

 

 

 

 

 

30 BUCKLEW v. PRECYTHE 

Opinion of the Court 

fully issued sentences are resolved fairly and expeditiously.

Courts should police carefully against attempts to use 

such challenges as tools to interpose unjustified delay.

Last-minute stays should be the extreme exception, not

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

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

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

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

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

by a lower court as an abuse of discretion where the 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” 

—————— 

5Seeking 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 individuals who would be allowed to “be present at an execution,” many of 

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

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

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

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

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

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

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

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

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

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

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

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

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

stay.” Hill v. McDonough, 547 U. S. 573, 584 (2006). 
Cite as: 587 U. S. ____ (2019) 31 

Opinion of the Court 

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

585. 

* 

The judgment of the court of appeals is 

Affirmed. 
 

 

_________________ 

_________________ 

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

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 17–8151 

RUSSELL BUCKLEW, PETITIONER v. ANNE L. 

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[April 1, 2019]

 JUSTICE THOMAS, concurring. 

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

the Eighth Amendment only if it is deliberately designed 

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

 

2 BUCKLEW v. PRECYTHE 

THOMAS, J., concurring 

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

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

The founding generation ratified the Eighth Amendment 

to reject that practice, contemplating that capital 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 penalty, e.g., post, at 18, this Court has never held a method of 

execution unconstitutional. Because the Court correctly 

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

_________________ 

_________________ 

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

KAVANAUGH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

No. 17–8151 

RUSSELL BUCKLEW, PETITIONER v. ANNE L. 

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[April 1, 2019]

 JUSTICE KAVANAUGH, concurring. 

When an inmate raises an as-applied constitutional 

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

challenge to a method of execution that is constitutional in

general but that the inmate says is very likely to cause

him severe pain—one question is whether the inmate 

must identify an available alternative method of execution 

that would significantly reduce the risk of severe pain.

Applying our recent decisions in Glossip v. Gross, 576 

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

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

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

holding and join the Court’s opinion.

I write to underscore the Court’s additional holding that 

the alternative method of execution need not be 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 
 

2 BUCKLEW v. PRECYTHE 

KAVANAUGH, J., concurring 

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

serious risk of pain will be unable to identify an available

alternative.” Ante, at 20. 

In other words, an inmate who contends that a 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. 
_________________ 

_________________ 

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

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 17–8151 

RUSSELL BUCKLEW, PETITIONER v. ANNE L. 

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[April 1, 2019]

 JUSTICE BREYER, with whom JUSTICE GINSBURG, 

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join as to all 

but Part III, dissenting. 

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

The first is primarily a factual question, namely, whether 

Bucklew has established genuine issues of material fact 

concerning whether executing him by lethal injection

would cause him excessive suffering. The second is 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 
 

 

2 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

the clear command of the Eighth Amendment. 

I 

I begin with a factual question: whether Bucklew has 

established that, because of his rare medical condition, the 

State’s current method of execution risks subjecting him to

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

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

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

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

serious harm” (internal quotation marks omitted)). 

There is no dispute as to the applicable summary 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. 
 

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

BREYER, J., dissenting 

Am. J. Med. & Sci. 56, 56–59 (2015).

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

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

grows directly on Bucklew’s uvula, which has become 

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

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

throat. Merriam-Webster’s Collegiate Dictionary 1379 

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

and make it difficult for him to breathe. His difficulty

breathing is chronic, but is particularly acute when he lies 

flat and gravity pulls his engorged uvula into his airway.

He often has to adjust the positioning of his head to 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. 
 

 

4 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

Bucklew would be unable to maintain the integrity of

his airway during the time after receiving the lethal 

injection and before death.” App. 221. 

 Dr. Zivot explained that, as a result of “the highly 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. 
Cite as: 587 U. S. ____ (2019) 5 

BREYER, J., dissenting 

 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. 
 

 

 

 

6 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

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

BREYER, J., dissenting 

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

expert, however, did not rely exclusively or even heavily 

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

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

Zivot explained that his testimony regarding the pain to

which Bucklew would be subjected was “supported both by

[his] own professional knowledge of how chemicals of this 

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

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

222. 

Whether any mistake about the importance of a single 

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

 

8 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

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.” 
Cite as: 587 U. S. ____ (2019) 9 

BREYER, J., dissenting 

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

allowing prisoners to invalidate a State’s method of 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 
 

 

 

10 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

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-ofexecution cases, and even though we unanimously rejected 
 

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

BREYER, J., dissenting 

such a requirement in Hill. And while the Court in 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 execu-
 

 

 

 

12 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

tion 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 Oklahoma—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. 
 

 

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

BREYER, J., dissenting 

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 
 

14 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

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 
 

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

BREYER, J., dissenting 

forbids all “cruel and unusual punishments.” Amdt. 8. 

C 

JUSTICE THOMAS concurs in the majority’s imposition of 

an “alternative method” requirement, but would also 

permit Bucklew’s execution on the theory that a method of 

execution violates the Eighth Amendment “‘only if it is

deliberately designed to inflict pain.’” Ante, at 1 (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 unequivo-
 

 

 

16 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

cally that these were not cruel and unusual measures in 

1791.” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L.

Rev. 849, 861 (1989). The question is not, as JUSTICE 

THOMAS maintains, whether a punishment is deliberately 

inflicted to cause unnecessary pain, but rather whether we 

would today consider the punishment to cause excessive

suffering. 

III 

Implicitly at the beginning of its opinion and explicitly

at the end, the majority invokes the long delays that now 

typically occur between the time an offender is sentenced

to death and his execution. Bucklew was arrested for the 

crime that led to his death sentence more than 20 years 

ago. And Bucklew’s case is not an anomaly. The average

time between sentencing and execution approaches 18

years and in some instances rises to more than 40 years.

See Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip 

op., at 18); Reynolds v. Florida, 586 U. S. ___, ___ (2018) 

(BREYER, J., statement respecting denial of certiorari) (slip

op., at 2).

I agree with the majority that these delays are 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 Buck-
 

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

BREYER, J., dissenting 

lew 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 
 

 

18 BUCKLEW v. PRECYTHE 

BREYER, J., dissenting 

constitutional means of carrying it out.” 576 U. S., at ___ 

(slip op., at 4) (emphasis added; alterations and internal

quotation marks omitted). 

These conclusions do not follow. It may be that there is 

no way to execute a prisoner quickly while affording him 

the protections that our Constitution guarantees to those 

who have been singled out for our law’s most severe 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. 
_________________ 

_________________ 

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

SOTOMAYOR, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 17–8151 

RUSSELL BUCKLEW, PETITIONER v. ANNE L. 

PRECYTHE, DIRECTOR, MISSOURI DEPARTMENT 

OF CORRECTIONS, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT 

[April 1, 2019]

 JUSTICE SOTOMAYOR, dissenting. 

As I have maintained ever since the Court started down 

this wayward path in Glossip v. Gross, 576 U. S. ___ 

(2015), there is no sound basis in the Constitution for 

requiring condemned inmates to identify an available 

means for their own executions. JUSTICE BREYER ably 

explains why today’s extension of Glossip’s alternativemethod 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 III. I write separately to address the troubling

dicta with which the Court concludes its opinion. 

I 

Given the majority’s ominous words about late-arising

death penalty litigation, ante, at 29–30, one might assume

there is some legal question before us concerning delay. 

Make no mistake: There is not. The majority’s commentary on once and future stay applications is not only inessential but also wholly irrelevant to its resolution of any 

issue before us. 
 

 

 

2 BUCKLEW v. PRECYTHE 

SOTOMAYOR, J., dissenting 

The majority seems to imply that this litigation has

been no more than manipulation of the judicial process for 

the purpose of delaying Bucklew’s execution. Ante, at 29. 

When Bucklew commenced this case, however, there was 

nothing “settled,” ibid., about whether the interaction of 

Missouri’s lethal-injection protocol and his rare medical

condition would be tolerable under the Eighth 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 punishment different from all other sanctions in kind rather than 
 

 

 

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

SOTOMAYOR, J., dissenting 

degree.” Woodson v. North Carolina, 428 U. S. 280, 303– 

304 (1976). For that reason, the equities in a death penalty 

case will almost always favor the prisoner so long as he 

or she can show a reasonable probability of success on the 

merits. See Nken, 556 U. S., at 434 (noting that success

on the merits and irreparable injury “are the most critical”

factors); cf. Glossip, 576 U. S., at ___ (slip op., at 11) (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 

—————— 

1A skewed view of the facts caused the majority to misapply these 

principles and misuse its “equitable powers,” see ante, at 30, and n. 5, 

in vacating the Court of Appeals’ unanimous stay in Dunn v. Ray, 586 

U. S. ___ (2019). Even today’s belated explanation from the majority

rests on the mistaken premise that Domineque Ray could have figured 

out sooner that Alabama planned to deny his imam access to the 

execution chamber. But see id., at ___ (KAGAN, J., dissenting) (slip op., 

at 3) (noting that the governing statute authorized both the inmate’s 

imam and the prison’s Christian chaplain to attend the execution, and 

that “the prison refused to give Ray a copy of its own practices and 
 

 

 

4 BUCKLEW v. PRECYTHE 

SOTOMAYOR, J., dissenting 

The principles of federalism and finality that the majority 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 

—————— 

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). 2See Zagorski v. Parker, 586 U. S. ___, ___–___ (2018) (SOTOMAYOR, 

J., dissenting from denial of application for stay and denial of certiorari) (slip op., at 2–3) (describing Tennessee’s recent equivocation about 

the availability of its preferred lethal injection protocol); Glossip, 576 

U. S., at ___ (SOTOMAYOR, J., dissenting) (slip op., at 29) (noting States’ 

“scramble” to formulate “new and untested” execution methods); 

Sepulvado v. Jindal, 739 F. 3d 716, 717–718 (CA5 2013) (Dennis, J., 
Cite as: 587 U. S. ____ (2019) 5 

SOTOMAYOR, J., dissenting 

or the imminence of an execution may shake loose 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. 

—————— 

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). 3See 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).