538 U.S. ____ (2003)

SUPREME COURT OF THE UNITED STATES

No. 01—6978

GARY ALBERT EWING, PETITIONER v. CALIFORNIA

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF
CALIFORNIA, SECOND APPELLATE DISTRICT

[March 5, 2003]

Justice Thomas, concurring in the judgment.

I agree with Justice Scalia’s view that the proportionality test announced in Solem v. Helm, 463 U.S. 277 (1983), is incapable of judicial application. Even were Solem’s test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See Harmelin v. Michigan, 501 U.S. 957, 967—985 (1991) (opinion of Scalia, J.).

Because the plurality concludes that petitioner’s sentence does not violate the Eighth Amendment’s prohibi-
tion on cruel and unusual punishments, I concur in the judgment.