Page:Glossip v. Gross.pdf/123

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

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SOTOMAYOR, J., dissenting

heightened pleading requirements.” 547 U. S., at 582. But that only confirms that the Court in Hill did not view the availability of an alternative means of execution as an element of an Eighth Amendment claim: If it had, then requiring the plaintiff to plead this element would not have meant imposing a heightened standard at all, but rather would have been entirely consistent with “tradi­ tional pleading requirements.” Ibid.; see Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The Baze plurality opinion should not be understood to have so carelessly tossed aside Hill’s underlying premise less than two years later. C In reengineering Baze to support its newfound rule, the Court appears to rely on a flawed syllogism. If the death penalty is constitutional, the Court reasons, then there must be a means of accomplishing it, and thus some avail­ able method of execution must be constitutional. See ante, at 4, 15–16. But even accepting that the death penalty is, in the abstract, consistent with evolving standards of decency, but see ante, p. ___ (BREYER, J., dissenting), the Court’s conclusion does not follow. The constitutionality of the death penalty may inform our conception of the degree of pain that would render a particular method of imposing it unconstitutional. See Baze, 553 U. S., at 47 (plurality opinion) (because “[s]ome risk of pain is inherent in any method of execution,” “[i]t is clear . . . the Constitution does not demand the avoidance of all risk of pain”). But a method of execution that is “barbarous,” Rhodes, 452 U. S., at 345, or “involve[s] torture or a lingering death,” Kemmler, 136 U. S., at 447, does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does