Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/49

Rh such a requirement in Hill. And while the Court in Glossip did not understand itself to be bound by Hill, see Glossip, 576 U. S., at ___ (slip op., at 15) (distinguishing Hill on the theory that Hill merely rejected a heightened pleading requirement for §1983 suits), the two decisions remain in considerable tension. Confining Glossip’s “alternative method” requirement to facial challenges would help to reconcile them.

Third, the troubling implications of today’s ruling provide the best reason for declining to extend Glossip’s “alternative method” requirement. The majority acknowledges that the Eighth Amendment prohibits States from executing prisoners by “‘horrid modes of torture’” such as burning at the stake. Ante, at 10. But the majority’s decision permits a State to execute a prisoner who suffers from a medical condition that would render his execution no less painful. Bucklew has provided evidence of a serious risk that his execution will be excruciating and grotesque. The majority holds that the State may execute him anyway. That decision confirms the warning leveled by the Glossip dissent—that the Court has converted the Eighth Amendment’s “categorical prohibition into a conditional one.” 576 U. S., at ___ (opinion of ) (slip op., at 24).

Even assuming for argument’s sake that Bucklew must bear the burden of showing the existence of a “known and available” alternative method of execution that “significantly reduces a substantial risk of severe pain,” id., at ___ (majority opinion) (slip op., at 13) (alteration and internal quotation marks omitted), Bucklew has satisfied that burden. The record contains more than enough evidence on the point to raise genuine and material factual issues that preclude summary judgment.

Bucklew identified as an alternative method of