In a footnote in Glossip v. Gross, Justice Alito faults Justice Sotomayor for failing to properly apply the ever-popular “Marks Rule” with respect to Baze.
JUSTICE SOTOMAYOR’s dissent (hereinafter principal dissent), post, at 24–25, inexplicably refuses to recognize that THE CHIEF JUSTICE’s opinion in Baze sets out the holding of the case. In Baze, the opinion of THE CHIEF JUSTICE was joined by two other JUSTICES. JUSTICES SCALIA and THOMAS took the broader position that a method of execution is consistent with the Eighth Amendment unless it is deliberately de- signed to inflict pain. 553 U. S., at 94 (THOMAS, J. concurring in judg- ment). Thus, as explained in Marks v. United States, 430 U. S. 188, 193 (1977), THE CHIEF JUSTICE’s opinion sets out the holding of the case. It is for this reason that petitioners base their argument on the rule set out in that opinion. See Brief for Petitioners 25, 28.
Justice Sotomayor replies:
Baze held no such thing. In the first place, the Court cites only the plurality opinion in Baze as support for its known-and-available-alternative requirement. See ibid. Even assuming that the Baze plurality set forth such a requirement—which it did not—none of the Members of the Court whose concurrences were necessary to sustain the Baze Court’s judgment articulated a similar view. See 553 U. S., at 71–77, 87 (Stevens, J., concurring in judg ment); id., at 94, 99–107 (THOMAS, J., concurring in judg ment); id., at 107–108, 113 (BREYER, J., concurring in judgment). In general, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U. S. 188, 193 (1977) (internal quotation marks omitted). And as the Court observes, ante, at 14, n. 2, the opinion of JUSTICE THOMAS, joined by JUSTICE SCALIA, took the broadest position with respect to the degree of intent that state officials must have in order to have violated the Eighth Amendment, concluding that only a method of execution deliberately designed to inflict pain, and not one simply designed with deliberate indifference to the risk of severe pain, would be unconstitutional. 553 U. S., at 94 (THOMAS, J., concurring in judgment). But this understanding of the Eighth Amendment’s intent requirement is unrelated to, and thus not any broader or narrower than, the requirement the Court now divines from Baze. Because the position that a plaintiff challenging a method of execution under the Eighth Amendment must prove the availability of an alternative means of execution did not “represent the views of a majority of the Court,” it was not the holding of the Baze Court. CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 81 (1987).