Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/22

Rh 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 well-established 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