Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/17

14 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 (, 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, 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 ___ (, concurring) (slip op., at 1); Baze, 553 U. S., at 94–107 (, 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.

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