Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/58

2 The majority seems to imply that this litigation has been no more than manipulation of the judicial process for the purpose of delaying Bucklew’s execution. Ante, at 29. When Bucklew commenced this case, however, there was nothing “settled,” ibid., about whether the interaction of Missouri’s lethal-injection protocol and his rare medical condition would be tolerable under the Eighth Amendment. At that time, Glossip had not yet been decided, much less extended to any as-applied challenge like Bucklew’s. In granting prior stay requests in this case, we acted as necessary to ensure sufficient time for sober review of Bucklew’s claims. The majority laments those decisions, but there is nothing unusual—and certainly nothing untoward—about parties pressing, and courts giving full consideration to, potentially meritorious constitutional claims, even when those claims do not ultimately succeed.

I am especially troubled by the majority’s statement that “[l]ast-minute stays should be the extreme exception,” which could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. See ante, at 30. Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.

Courts’ equitable discretion in handling stay requests is governed by well-established principles. See Nken v. Holder, 556 U. S. 418, 434 (2009). Courts examine the stay applicant’s likelihood of success on the merits, whether the applicant will suffer irreparable injury without a stay, whether other parties will suffer substantial injury from a stay, and public interest considerations. Ibid.

It is equally well established that “[d]eath is a punishment different from all other sanctions in kind rather than