                  Cite as: 553 U. S. ____ (2008)             1

                     STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES
     CHRISTOPHER SCOTT EMMETT v. GENE M. 

     JOHNSON, DIRECTOR, VIRGINIA DEPART- 

          MENT OF CORRECTIONS, ET AL. 

 ON MOTION TO VACATE STAY OF EXECUTION OF SENTENCE

                     OF DEATH

               No. 07A304.   Decided May 19, 2008 


   The motion to vacate the stay of execution of sentence of
death issued by the Court on October 17, 2007, is granted.
   JUSTICE STEVENS, with whom JUSTICE SOUTER and
JUSTICE GINSBURG join, dissenting.
   In 2001, Christopher Scott Emmett was convicted of
capital murder and sentenced to death. On April 19, 2007,
Emmett filed suit under 42 U. S. C. §1983, asserting that
Virginia’s lethal injection protocol violated the Eighth
Amendment. The District Court for the Eastern District
of Virginia granted summary judgment to the State, find-
ing that Emmett failed to submit sufficient evidence to
show that Virginia’s method of execution created a “sub-
stantial risk that he will experience unnecessary pain that
is serious or significant” or that prison officials were delib-
erately indifferent to such a risk. 511 F. Supp. 2d 634,
640, and n. 5 (2007) (internal quotation marks omitted).
   On September 25, 2007, five days after the District
Court denied relief, Emmett filed a notice of appeal with
the Fourth Circuit. On that same date, this Court granted
certiorari in Baze v. Rees, 551 U. S. ___ (2007), to consider
the constitutionality of Kentucky’s lethal injection proto-
col. As Emmett’s October 17th execution date approached
(without a final decision having been rendered by the
Fourth Circuit), Emmett filed an application for a stay of
execution in this Court. We granted his application and
entered a stay “pending final disposition of the appeal by
2                  EMMETT v. JOHNSON

                    STEVENS, J., dissenting

the United States Court of Appeals for the Fourth Circuit
or further order of this Court.” 552 U. S. ___.
  The Commonwealth of Virginia has moved to vacate
that stay. The Fourth Circuit has not rendered a final
disposition on the appeal, but it has acted swiftly in the
month since we issued our decision in Baze; it requested
additional briefing on the impact of Baze the day after
that opinion issued, received those briefs on May 2, and
heard oral argument on Wednesday, May 14. I therefore
believe we should leave our stay in place until the Fourth
Circuit has an adequate opportunity to render a decision
on the merits of Emmett’s claim. The parties’ filings with
this Court highlight the existence of factual disputes
concerning Virginia’s lethal injection protocol, including
whether it is substantially similar to the Kentucky proto-
col we declined to strike down in Baze. Because the
Fourth Circuit has the trial record before it, and also has
the benefit of extensive briefing and argument, it is in a
significantly better position than we are to make these
factual judgments when it rules on the merits of Emmett’s
appeal.
  Although the parties are of course free to request a stay
from the Fourth Circuit—a request that the court may
well grant in order to complete its consideration of Em-
mett’s appeal without the pressure of a looming execution
date—I would not require the parties to shoulder the
additional burden of filing superfluous papers when sim-
ply leaving our stay in place until final disposition by the
Court of Appeals would also give the Fourth Circuit an
opportunity to consider these important issues in the
regular course. Accordingly, I respectfully dissent.
