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GLOSSIP v. GROSS THOMAS, J., concurring

that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.4 To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.

—————— 4 JUSTICE

BREYER appears to acknowledge that our decision holding mandatory death penalty schemes unconstitutional, Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), may have introduced the problem of arbitrary application. Post, at 14. I agree that Woodson eliminated one reliable legislative response to concerns about arbitrariness. Graham v. Collins, 506 U. S. 461, 486 (1993) (THOMAS, J., concurring). Because that decision was also questionable on constitutional grounds, id., at 486–488, I would be willing to revisit it in a future case.