Justice Thomas, joined by Justice Alito, dissents from SCOTUS denial of cert regarding challenge to execution methods

The particulars of constitutional challenges over execution methods has generated three modern Supreme Court Eighth Amendment rulings (Baze, Glossip, and Bucklew).  Though the state prevailed in all these rulings against condemned prisoners' various attacks on various lethal injection protocols, litigation over execution methods are still common and the applicable Eighth Amendment jurisprudence remains contested.  These realities provide the background for a dissent from the denial of cert in this morning's SCOTUS order list today by Justice Thomas, joined by Justice Alito, in Hamm v. Smith, No. 22–580. Here are excerpts from the intricate six-page dissent:

In this petition, the State now asks this Court to summarily reverse the Eleventh Circuit’s holding that Smith pleaded a viable Eighth Amendment claim. I would do so. The judgment below rests on flawed Circuit precedent that is irreconcilable with our method-of-execution case law....

In 2018, Alabama enacted a statute authorizing execution by nitrogen hypoxia for inmates who elected that method within 30 days of their sentences becoming final or, for those whose sentences were already final before June 1, 2018, within 30 days of that date.  Ala. Code §15– 18–82.1(b)(2). (Smith did not elect nitrogen hypoxia, so lethal injection remains the only method of execution authorized by state law in his case. §15–18–82.1(a).)  Nearly five years later, Alabama has yet to carry out any execution by nitrogen hypoxia or to finalize a protocol for implementing that method — which “ha[s] never been used to carry out an execution and ha[s] no track record of successful use” in any jurisdiction. Bucklew, 587 U. S., at ___ (slip op., at 22) (internal quotation marks omitted).

[T]he Eleventh Circuit has treated the existence of this Alabama statute as relieving inmates like Smith of their burden to plead and prove that nitrogen hypoxia is feasible and readily implemented in fact.... [But] whether the State has authorized the proffered alternative as a matter of state statutory law has no relevance to the plaintiff ’s burden of showing a constitutional violation.  Bucklew has already explained why: “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the State’s choice of which methods to authorize in its statutes.” 587 U. S., at ___–___ (slip op., at 19–20)....

When the question is whether the Eighth Amendment requires a State to replace its chosen method with an alternative method in executing the plaintiff, it is simply irrelevant, without more, that the State’s statutes authorize the use of the alternative method in other executions that are to take place sometime in the indefinite future.  Here, Smith alleged only that, and nothing more. He therefore failed to state a claim, and the Eleventh Circuit erred by holding otherwise.

The Eleventh Circuit’s error is not only plain but also serious enough to warrant correction. Even if “the burden of the alternative-method requirement ‘can be overstated,’” Bucklew, 587 U. S., at ___ (KAVANAUGH, J., concurring) (slip op., at 1), it remains an essential element of an Eighth Amendment method-of-execution claim, and it must be appropriately policed lest it become an instrument of dilatory litigation tactics.  The comparative analysis set forth in Baze, Glossip, and Bucklew contains an inherent risk of incentivizing “an inmate intent on dragging out litigation . . . to identify only a method of execution on the boundary of what’s practically available to the state.”  Middlebrooks v. Parker, 22 F. 4th 621, 625 (CA6 2022) (Thapar, J., statement respecting denial of rehearing en banc).  The Eleventh Circuit’s approach of treating any statutorily authorized method as available as a matter of law — even an entirely novel method that may not be readily implementable in reality — only heightens that danger.  In turn, and as a result, it “perversely incentivize[s] States to delay or even refrain from approving even the most humane methods of execution” any earlier than the moment they are prepared to put them into practice.  Price v. Dunn, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring in denial of certiorari) (slip op., at 11).