Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/48

10 identification of a permissible alternative method of execution would provide a reference point to assist in determining how much pain in an execution is too much pain. See 576 U. S., at ___–___ (slip op., at 12–13); Baze, 553 U. S., at 47, 51 (plurality opinion); see also ante, at 15 (arguing that determining the constitutionality of a method of execution “is a necessarily comparative exercise”). But there is no need for any such reference point in a case like this. Bucklew accepts the constitutionality of Missouri’s chosen execution method as to prisoners who do not share his medical condition. See Brief for Petitioner 36. We are informed that this method has been used in 20 executions, apparently without subjecting prisoners to undue pain. See Brief for Respondents 5. To the extent that any comparator is needed, those executions provide a readymade, built-in comparator against which a court can measure the degree of excessive pain Bucklew will suffer.

Second, precedent counsels against extending Glossip. Neither this Court’s oldest method-of-execution case, Wilkerson v. Utah, 99 U. S. 130 (1879), nor any subsequent decision of this Court until Glossip, held that prisoners who challenge a State’s method of execution must identify an alternative means by which the State may execute them. To the contrary, in Hill v. McDonough, 547 U. S. 573 (2006), the Court squarely and unanimously rejected the argument that a prisoner must “identif[y] an alternative, authorized method of execution.” Id., at 582. The Court noted that any such requirement would “change the traditional pleading requirements for §1983 actions,” which we were not at liberty to do. Ibid. It is thus difficult to see how the “alternative-method” requirement could be “compelled by our understanding of the Constitution,” ante, at 17, even though the Constitution itself never hints at such a requirement, even though we did not apply such a requirement in more than a century of method-of-execution cases, and even though we unanimously rejected