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GLOSSIP v. GROSS Opinion of the Court

could use sodium thiopental as part of a single-drug protocol. They have since suggested that it might also be constitutional for Oklahoma to use pentobarbital. But the District Court found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma’s Department of Corrections. The Court of Appeals affirmed that finding, and it is not clearly erroneous. On the contrary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so. Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.2 Petitioners contend that the requirement to identify an alternative method of execution contravenes our pre-Baze decision in Hill v. McDonough, 547 U. S. 573 (2006), but they misread that decision. The portion of the opinion in Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In —————— 2 JUSTICE

SOTOMAYOR’s dissent (hereinafter principal dissent), post, at 24–25, inexplicably refuses to recognize that THE CHIEF JUSTICE’s opinion in Baze sets out the holding of the case. In Baze, the opinion of THE CHIEF JUSTICE was joined by two other JUSTICES. JUSTICES SCALIA and THOMAS took the broader position that a method of execution is consistent with the Eighth Amendment unless it is deliberately designed to inflict pain. 553 U. S., at 94 (THOMAS, J. concurring in judgment). Thus, as explained in Marks v. United States, 430 U. S. 188, 193 (1977), THE CHIEF JUSTICE’s opinion sets out the holding of the case. It is for this reason that petitioners base their argument on the rule set out in that opinion. See Brief for Petitioners 25, 28.