In the case of Ralph Baze and Thomas C. Bowling v. John D. Rees, Commissioner, Kentucky Department of Corrections et al., 2007, the U.S Supreme Court was tasked with determining whether or not Kentucky's three-drug lethal injection protocol constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. The petitioners were two death row inmates who argued that there was a significant risk of pain if the execution process did not go as planned which could be easily avoided by adopting a different method for executions. However, in April 2008, by a vote of 7-2 (Justices Ginsburg and Souter dissenting), it was ruled that they had failed to demonstrate "a substantial risk of serious harm" necessary to establish an Eighth Amendment claim; hence their challenge against Kentucky’s lethal injection procedure was rejected.

In the dissenting opinion for Ralph Baze and Thomas C. Bowling v. John D. Rees, Justice Ginsburg argued that Kentucky's lethal injection protocol could violate the Eighth Amendment if it creates a significant risk of severe pain. She pointed out that there was evidence suggesting that sodium thiopental, one of three drugs used in Kentucky's lethal injection procedure, may not always render an inmate unconscious during execution due to improper administration or dosage errors. If this occurs, the subsequent administration of pancuronium bromide and potassium chloride can cause extreme pain without any outward signs because these drugs paralyze muscles and stop the heart respectively; thus potentially constituting cruel and unusual punishment under certain circumstances as per her interpretation of Eighth Amendment jurisprudence.