Page:Glossip v. Gross.pdf/121

 Cite as: 576 U. S. ____ (2015)

25

SOTOMAYOR, J., dissenting

constitutional. 553 U. S., at 94 (THOMAS, J., concurring in judgment). But this understanding of the Eighth Amendment’s intent requirement is unrelated to, and thus not any broader or narrower than, the requirement the Court now divines from Baze. Because the position that a plaintiff challenging a method of execution under the Eighth Amendment must prove the availability of an alternative means of execution did not “represent the views of a majority of the Court,” it was not the holding of the Baze Court. CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 81 (1987). In any event, even the Baze plurality opinion provides no support for the Court’s proposition. To be sure, that opinion contains the following sentence: “[The condemned] must show that the risk is substantial when compared to the known and available alternatives.” 553 U. S., at 61. But the meaning of that key sentence and the limits of the requirement it imposed are made clear by the sentence directly preceding it: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain.” Ibid. (emphasis added). In Baze, the very premise of the petitioners’ Eighth Amendment claim was that they had “identified a significant risk of harm [in Kentucky’s protocol] that [could] be eliminated by adopting alterna­ tive procedures.” Id., at 51. Their basic theory was that even if the risk of pain was only, say, 25%, that risk would be objectively intolerable if there was an obvious alterna­ tive that would reduce the risk to 5%. See Brief for Peti­ tioners in Baze v. Rees, O. T. 2007, No. 07–5439, p. 29 (“In view of the severity of the pain risked and the ease with which it could be avoided, Petitioners should not have been required to show a high likelihood that they would suffer such pain . . . ”). Thus, the “grounds. . . asserted” for relief in Baze were that the State’s protocol was intol­