In 2008, in Baze v. Rees,1 the Supreme Court considered an Eighth Amendment challenge to the use of a particular three-drug lethal injection protocol. A three-Justice plurality opinion announced that, to prevail on a § 19832 method-of-execution claim, a petitioner must establish that a state’s proposed method presents an “objectively intolerable risk of harm.”3 Last Term, in Glossip v. Gross,4 the Court revisited Baze in the context of Oklahoma’s adoption of the sedative midazolam in its protocol as a replacement for a now-unavailable part of the drug cocktail approved in Baze. The Court held that the death row inmate–petitioners were not entitled to a preliminary injunction against Oklahoma’s lethal injection protocol because they had failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment.5 In resolving Glossip based purely on the petitioners’ failure to satisfy this one factor — one of four that some federal courts generally consider when ruling on preliminary injunctions — the Court demonstrated a lack of sympathy for more relaxed, sliding-scale preliminary injunction standards. After Glossip, lower courts may have difficulty justifying a flexible approach to the success-on-the-merits prong of the preliminary injunction test.
In 1977, Oklahoma legislators seeking a more humane way of carrying out death sentences adopted a three-drug lethal injection protocol: a large dose of the general anesthetic sodium thiopental, followed by a paralytic agent, and then by potassium chloride, which induces cardiac arrest.6 After the Court’s decision in Baze, some drug companies began refusing to supply sodium thiopental for executions.7 Oklahoma sought an alternative in order to continue carrying out the death penalty,8 and turned to midazolam, a move some derided as part of the “ongoing experiment in executing people with untested drug combinations.”9
Oklahoma first utilized midazolam on April 29, 2014, as part of the lethal injection protocol used to kill Clayton Lockett.10 During the execution, Lockett began to kick his right leg, breathe heavily, and try to speak — all signs that he had not been properly sedated.11 The execution team determined that the IV had infiltrated Lockett’s tissue and halted the execution, but Lockett was pronounced dead ten minutes later.12 Oklahoma stayed all pending executions while it investigated Lockett’s.13 Adopting one of the four alternative drug combinations offered in the post-investigation report, Oklahoma planned to administer 500 milligrams of midazolam followed by the paralytic agent and potassium chloride in its next executions.14
On June 25, 2014, twenty-one Oklahoma inmates sentenced to death filed a § 1983 complaint challenging the use of midazolam in Oklahoma’s execution protocol as violative of the Eighth Amendment.15 They argued that the “inherent characteristics” of the drug —namely an alleged ceiling effect, a level beyond which increasing the dosage would not increase the drug’s effectiveness, and a risk of “paradoxical reactions,” including agitation and involuntary movements — rendered the drug “unsuitable” as the sole anesthetic.16 They contended that the drug would pose an unconstitutionally “substantial risk” that an inmate would experience “severe pain, needless suffering, and a lingering death,”17 and cited Lockett’s execution as proof.18 In November 2014, four of the plaintiffs — Charles Warner, Benjamin Cole, John Grant, and Richard Glossip19 — sought a preliminary injunction barring the defendants from executing them under the new protocol until a court could rule on the merits of their claims.20
In December 2014, Judge Friot of the U.S. District Court for the Western District of Oklahoma held a three-day evidentiary hearing on the preliminary injunction motion.21 After the hearing, Judge Friot orally denied the motion.22 First, he laid out the standard for entry of a preliminary injunction: “[P]laintiffs must demonstrate, first, that they will likely succeed on the merits of their claim; second, that without preliminary relief they will suffer irreparable harm; third, that the balance of equities tips in their favor; and fourth, that entry of an injunction is in the public interest.”23 He also noted the Tenth Circuit’s relaxed preliminary injunction standard: when irreparable harm, the balancing of the equities, and public interest considerations all tip in the movant’s favor, “it will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult, and doubtful as to make them a fair ground for litigation.”24 Judge Friot concluded that the petitioners were not entitled to relief under either standard as they had “failed to establish any of the prerequisites.”25
Writing for a unanimous Tenth Circuit panel, Chief Judge Briscoe26 found that the district court’s factual findings were not clearly erroneous and affirmed the district court’s order denying the petitioners’ motion for a preliminary injunction.27 The plaintiffs petitioned for certiorari and applied for stays of their executions.28 The Court denied Warner’s application,29 and he was executed on January 15, 2015.30 Nevertheless, the Court granted the petitioners’ writ of certiorari and then stayed the executions of Cole, Grant, and Glossip.31
Five months later, however, the Supreme Court affirmed the Tenth Circuit’s decision.32 Writing for the Court, Justice Alito33 found that the inmates were not entitled to a preliminary injunction because they had failed to establish that they were likely to succeed on the merits of their Eighth Amendment claims,34 a requirement purportedly established in Winter v. Natural Resources Defense Council, Inc.35 According to Justice Alito, the preliminary injunction posture of the case “require[d] petitioners to establish a likelihood that they can establish both that Oklahoma’s lethal injunction protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives.”36 They had failed on both counts.
First, the petitioners had failed to “satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution.”37 Like the district court and court of appeals, Justice Alito found that Baze required petitioners to propose a substitute method of execution, and the petitioners had failed to do so.38 Second, Justice Alito determined that the district court did not commit clear error in finding that midazolam is highly likely to render a person unable to feel pain during execution.39 Finally, Justice Alito declared that the inmates’ remaining arguments — that the district court should have rejected the state expert’s testimony, that the state expert’s report contained a mathematical error, that there was no consensus among the States regarding midazolam’s efficacy as the drug had not been widely adopted, and that Lockett’s execution and Arizona’s botched July 2014 execution of Joseph Wood established that midazolam was likely to cause substantial pain — lacked merit.40
Justice Sotomayor dissented.41 The Court, she contended, had “fail[ed] to fully appreciate the procedural posture in which th[e] case [arose].”42 The petitioners need not “prove their claim,” and had presented enough “compelling evidence . . . that midazolam will not work as [intended]”43 to be “at the very least likely to prove . . . a constitutionally intolerable risk that they will be awake, yet unable to move, while chemicals known to cause ‘excruciating pain’ course through their veins.”44 Justice Sotomayor also criticized the majority’s “legally indefensible” conclusion that, under Baze, petitioners must identify an alternative, available method of execution to successfully challenge a state’s planned method.45 According to Justice Sotomayor, “the Baze plurality opinion provides no support for the Court’s proposition,” and any such requirement mentioned in Baze was limited to cases in which, as in Baze, petitioners offer that a proposed method was intolerable in light of available alternatives.46
Justice Breyer also dissented,47 questioning whether the death penalty inherently violates the Eighth Amendment.48 He methodically set forth four “fundamental constitutional defects” in the death penalty49: (1) a lack of reliability, as demonstrated by the recent rise in exonerations of individuals who had been sentenced to death;50 (2) arbitrary imposition of the penalty since its reinstatement in 1976;51 (3) cruelly excessive delays in the imposition of the penalty, which result in individuals spending many years on death row;52 and (4) such rare imposition of the death penalty that it should today be regarded as constitutionally unusual.53 Instead of “try[ing] to patch up the death penalty’s legal wounds one at a time,” Justice Breyer welcomed full briefing on the broader question of its abolition.54
Both Justice Alito’s majority opinion and Justice Sotomayor’s dissent interpreted Winter to mean that the death row inmate–plaintiffs seeking a preliminary injunction must establish a likelihood of success on the merits of their claim that the use of the sedative midazolam violates the Eighth Amendment.55 Despite the Court’s straightforward invocation of this rule, courts of appeals and commentators have disagreed about whether Winter imposes such a mandate. In deciding Glossip based on only one of four factors federal courts generally consider when ruling on preliminary injunctions, the Court may have resolved — albeit unintentionally — part of a circuit split on the threshold requirements for preliminary injunctions. Glossip seems to require that courts take an inflexible approach to, at least, the success-on-the-merits prong of the preliminary injunction test, an approach that may have consequences in the death-penalty context and elsewhere.
Preliminary injunctions are pretrial orders issued to “protect plaintiff[s] from irreparable injury and to preserve the court’s power to render a meaningful decision after a trial on the merits.”56 They require the nonmoving party to do or to refrain from doing a particular action until the temporary order is lifted or superseded.57 When granted, preliminary injunctions may be based on “evidence that is less complete than in a trial on the merits.”58 Still, courts regard the preliminary injunction as an “extraordinary and drastic remedy.”59 The movant must, “by a clear showing, carr[y] the burden of persuasion” to be granted injunctive relief.60
But courts have long disagreed about what carrying the burden of persuasion should entail. Generally, courts assess four factors in deciding whether to grant a preliminary injunction: (1) whether irreparable harm is likely to occur if the injunction is not granted before trial; (2) the movant’s likelihood of success on the merits; (3) the balance of harms between parties if an injunction is issued or if one is not; and (4) the public interest.61 Noting that the injunction is a type of equitable relief and that “[f]lexibility is a hallmark of equity jurisdiction,”62 most, but not all,63 courts and commentators have historically regarded the four factors as considerations and not free-standing requirements that must each be met for a preliminary injunction to issue.64 After the Court’s 2008 decision in Winter, some appellate courts began to question whether the Court had abrogated this balancing approach to preliminary injunctions. Despite tackling the standard for only one of the four relevant factors,65 the Court matter-of-factly stated that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”66 On its face, the test as articulated in Winter appears to nullify at least some sliding-scale approaches to preliminary injunctions — instead requiring findings in favor of the moving party on each prong — but the Court did not squarely address that question.67
Circuit courts of appeals grappled immediately with how to square the Winter articulation of the preliminary injunction standard with their more flexible versions of the test.68 Before Winter, some circuits utilized a sliding-scale version of the preliminary injunction test under which a movant could either establish all four of the traditional factors or show irreparable harm, as well as “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant’s favor.”69 After Winter, the Fourth Circuit held that the “serious questions” test was no longer viable.70 Some D.C. Circuit judges believed that Winter abrogated the “serious questions” approach,71 but the court did not resolve the matter.72 By contrast, the Second, Seventh, and Ninth Circuits managed to square their “serious questions” tests with Winter.73
Glossip arose in the Tenth Circuit, which had not squarely adjudicated the viability of the “serious questions” approach.74 In rendering his findings after the preliminary injunction hearing, Judge Friot made note of the possibility that the court could assess the plaintiffs’ claims under the “serious questions” approach.75 The Tenth Circuit likewise referenced the looser standard, though only to dismiss in a footnote the suggestion that the approach remained viable under Court precedent.76
The Glossip Court made no note of the “serious questions” approach. Instead, it recited the test from Winter as the mandatory standard for preliminary injunctions and proceeded to assess one prong — likelihood of success on the merits — under that approach.77 The majority suggested that “[t]he parties agree[d] that this case turns on whether petitioners are able to establish a likelihood of success on the merits.”78 To be sure, both the petitioners and the respondents focused heavily on the success-on-the-merits prong, but that focus should not have foreclosed other avenues for relief. The petitioners argued that if the success-on-the-merits prong was satisfied, a preliminary injunction should issue,79 but they still put forward an argument that the other prongs had been met. The respondents disputed that theory, creating a live controversy over these prongs, too.80 But after finding that the first prong had not been established, the Court deemed the inmates’ claims unrealizable, despite precedent suggesting that the other three preliminary injunction factors may have tipped in the inmates’ favor.81
Glossip’s likely reification of the Winter requirements for a preliminary injunction may have ramifications in death penalty cases and other contexts. A trial court judge who might otherwise apply the “serious questions” version of the preliminary injunction test to preserve the status quo in order to more completely hear and evaluate evidence that might support a petitioner’s claims may perceive Glossip as limiting her discretion to do so. This outcome is problematic given that some method-of-execution preliminary injunction hearings evaluate relatively new and untested execution drugs about which a judge may not have enough information to render a measured decision regarding the likely outcome of a merits decision.82 Before Glossip, death-row inmates faced an uphill climb attempting to quickly marshal evidence of the inefficacy of a state-selected method of execution — at times in the face of drug secrecy laws83 and state officials’ unwillingness to provide information about drug protocols84 — in time to ensure that petitioners lived to see their claims adjudicated on the merits. In eschewing the “flexibility . . . inherent in equitable remedies,”85 the Glossip Court may have made that hill all the more steep and further entrenched a rigid approach to the preliminary injunction test.