dissenting.
The increasingly alarming penchant of the Court inappropriately to invoke its power of summary disposition could not be more evident than in this case. With the benefit of neither full briefing nor oral argument, the Court holds that Rummel v. Estelle, 445 U. S. 263 (1980), precluded the courts below from holding that respondent has been subjected to cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.
Rummel considered whether the application of the Texas habitual offender statute to petitioner William Rummel constituted cruel and unusual punishment in violation of the Eighth Amendment. The Texas statute prescribed a mandatory life sentence following a third conviction on a felony charge. Rummel became subject to this provision in 1973, when he was convicted of obtaining $120.75 by false pretenses, then a felony under Texas law. On two earlier occasions, Rummel had been convicted of felonies under Texas law: in 1964 for fraudulently using a credit card to obtain $80 worth of goods or services, and in 1969 for passing a forged check in the amount of $28.36. Rummel argued that the imposition of a mandatory life sentence in his case amounted to cruel and unusual punishment in violation of the Eighth Amendment, as applied to the States through the Fourteenth Amendment, see Robinson v. California, 370 U. S. 660, 667 (1962). The Court rejected Rummel’s constitutional attack. While noting that “one could argue . . . that for crimes con-cededly classified and classifiable as felonies, . . . the length *382of the sentence actually imposed is purely a matter of legislative prerogative,” 445 U. S., at 274, the Court adopted a much narrower basis for decision, holding that, in the context of Texas’ habitual offender statute, the imposition of a life sentence on Rummel served the legitimate state interests of deterring recidivism and of segregating habitual offenders “from the rest of society for an extended period of time.” Id., at 284. Because this narrower ground was chosen, the Court found it unnecessary to decide whether the Eighth Amendment would have been violated if, in the absence of the habitual offender statute, a life sentence had been imposed on Rummel “merely for obtaining $120.75 by false pretenses.” Id., at 276. The Court stated in this respect:
“[T]he interest of the State of Texas here is not simply that of making criminal the unlawful acquisition of another person’s property; it is in addition the interest, expressed in all recidivist statutes, in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law. By conceding the validity of recidivist statutes generally, Rummel himself concedes that the State of Texas, or any other State, has a valid interest in so dealing with that class of persons.” Ibid.
Relying on Rummel, the per curiam suggests that because the punishment imposed on respondent was within the maximum prescribed by the state legislature, the Court of Appeals, which affirmed the District Court’s grant of habeas relief on Eighth Amendment grounds, “sanctioned an intrusion into the basic line-drawing process that is ‘properly within the province of legislatures, not courts.’” Ante, at 374, quoting Rummel, supra, at 275-276. Even if I viewed Rummel as properly decided, and I do not, the per curiam, by suggesting that it was improper for the courts below to engage in a disproportionality analysis, represents a serious *383and improper expansion of Rummel. Rummel acknowledged that prior decisions of this Court, see, e. g., Ingraham v. Wright, 430 U. S. 651, 667 (1977); Trop v. Dulles, 356 U. S. 86 (1958) (plurality opinion); Weems v. United States, 217 U. S. 349 (1910), recognized that the Eighth Amendment includes a principle of proportionality that requires the invalidation of a sentence that is “grossly disproportionate to the severity of the crime,” Rummel, supra, at 271-272. Rummel did not overrule those cases but cited them approvingly.1 Rummel rests on the understanding that, as a consequence of the overwhelming state interests in deterring habitual offenders, the Eighth Amendment does not preclude a State from imposing what might otherwise constitute a disproportionate prison sentence on an individual determined under state law to be a habitual offender. Of course, in the instant case, the Commonwealth of Virginia has expressed no will to punish Davis as a habitual offender, and there has been no determination that he is one.
The per curiam nevertheless reverses the judgment below on the basis that “Rummel stands for the proposition that federal courts should be ‘reluctan[t] to review legislatively mandated terms of imprisonment’ . . . and that ‘successful challenges to the proportionality of particular sentences’ should be ‘exceedingly rare.’” Ante, at 374, quoting Rummel, supra, at 274, 272. But this general principle of deference surely cannot justify the complete abdication of our responsibility to enforce the Eighth Amendment. The question presented here is whether the sentence imposed on respondent in this case comports with the limitation contained *384in the Eighth Amendment. To reverse on the basis of Rummel, the Court must at least demonstrate why this is not one of those “exceedingly rare” cases in which the Eighth Amendment invalidates a sentence as disproportionate. But the per curiam engages in no such analysis.2 We may be sure, however, that the Court of Appeals, directed to reconsider this case in light of Rummel, did undertake that analysis — upon full review and with the benefit of a substantial record, oral argument, and briefs.
It is obvious to me, as it apparently was to at least five judges of the Court of Appeals, that this case is one of those “exceedingly rare” cases in which a sentence should be invalidated on Eighth Amendment grounds. First, the indications are that the punishment imposed on respondent for the possession and distribution of less than nine ounces of marihuana — 40 years’ imprisonment and fines of $20,000 — is not simply harsh, but is in cruel and painful excess of the punishments imposed by the Virginia courts on other defendants convicted of similar offenses. As the District Court noted:
“From October 31, 1975 to August, 1976 one hundred and seventeen (117) inmates were committed to the State Department of Corrections for possessing, selling, or manufacturing marijuana. The average sentence for *385these offenses was three years and two months, the minimum was sixty days, and the maximum was fifteen years.” Davis v. Zahradnick, 432 F. Supp. 444, 453 (WD Va. 1977).
Second, this case is unique in that the very prosecutor who brought the charges against the respondent was forced to concede in light of his experience that the case represents a “grave disparity in sentencing,” and that the continued incarceration of Davis “is grossly unjust.”3 Finally, by its subse*386quent action, the Virginia Legislature has implicitly indicated that it views the punishment imposed on the respondent as too severe: in 1979 it reduced from 40 years to 10 years the maximum sentence that can be imposed with respect to each of the two offenses for which the respondent was convicted. See Va. Code § 18.2-248.1(a)(2) (Supp. 1981); §18.2-10(e) (1975). Under the current statute, respondent could, at maximum, be sentenced to 20 years’ imprisonment — two consecutive 10-year terms. This legislative reappraisal of criminal punishment for marihuana offenses does not necessarily render unconstitutional respondent’s substantially longer term. But it plainly confirms the views of the courts below, which I share, that the punishment inflicted on Davis is unconstitutionally disproportionate and unsupported by any considered legislative judgment that the punishment inflicted is appropriate for the offenses committed.4 See Coker v. Georgia, 433 U. S. 584, 597 (1977) (plurality opinion) (“[T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman”). See also Trop v. Dulles, 356 U. S., at 101 (“The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”). For these three reasons, and in the absence of full briefing or oral argument, I think that the judgment below — that Davis has indeed been subjected to cruel and unusual punishment — is not an unreasonable one.5
*387Today’s decision is profoundly disturbing not only because the Court has misused precedent in order to place its imprimatur on a punishment that the courts below have determined, with ample justification, to be cruel and unusual, but also because it represents yet another instance of this Court’s “growing and inexplicable readiness ... to ‘dispose of’ cases summarily.” Harris v. Rivera, ante, at 349 (MARSHALL, J., dissenting). I am, of course, cognizant that, because of an ever-increasing docket, the Court has come under extraordinary pressure to accelerate its disposition process. But I do not believe that summary disposition on the basis of the certiorari papers is a proper response to such pressure6 where, as here, it is employed to change or extend the law in significant respects. Here, the Court reverses the judgment of the Court of Appeals, which had the benefit of our decisions, a concrete record, and a thoughtful Dis*388trict Court opinion. And the Court does so in a context in which the Court of Appeals affirmed by an equally divided court, without opinion; there is accordingly no statement of law below that requires correcting. I can only believe that the Court perceives this case as one in which the narrow Rummel ruling concerning recidivist statutes can be extended to new terrain without the necessary exertion of argument and briefing. Unfortunately, it is Roger Trenton Davis who must now suffer the pains of the Court’s insensitivity, and serve out the balance of a 40-year sentence viewed as cruel and unusual by at least six judges below. I dissent from this patent abuse of our judicial power.7
That there should be any doubt as to the continued validity of the proportionality principle is particularly incomprehensible in view of the Rummel Court’s reliance on the proportionality principle in a footnote, where the Court, responding to the fanciful hypothetical of the dissent, stated that this principle would bar a legislature from making “overtime parking a felony punishable by life imprisonment.” 445 U. S., at 274, n. 11.
The per curiam notes that the District Court applied the four-factor proportionality test of Hart v. Coiner, 483 F. 2d 136 (CA4 1973). Ante, at 371, 373, and n. 2. It then suggests that the test is inconsistent with the decision in Rummel and that reversal is therefore appropriate here. Even if the Court were correct in its suggestion that the Hart test is inconsistent with Rummel, reversal would not be appropriate, because there is simply no basis for saying that the judgment of the Court of Appeals rests on the Hart test. The Court of Appeals, sitting en banc, affirmed the judgment of the District Court by an equally divided court, and therefore did not issue an opinion. Accordingly, the five judges of the Court of Appeals that voted to affirm the judgment of the District Court may have based their view of the unconstitutionality of Davis’ punishment on reasoning entirely unrelated to that offered by the District Court — particularly since the District Court’s opinion had been issued prior to Rummel. In *385any event, this Court reviews judgments, not opinions, and therefore the Court can reverse the judgment of the Court of Appeals only if it is not sustainable on any basis.
The prosecutor’s comments were contained in the following letter that he sent to Davis’ attorney:
“This will confirm our recent telephone conversation wherein I advised I would pose no objection to the release of Mr. Davis from the Virginia penal system on a suspended term basis.
“Heretofore, I have steadfastly opposed his release. However, the sentences now being imposed throughout the majority of the Commonwealth and the nation for comparable acts of drug distribution are extremely light and in most cases insignificant. In view of such, I think a gross injustice would be done should I not recommend his immediate release with the remainder of his term suspended.
“I do wish to make it expressly clear that my recommendation should not be construed as being critical of the jury that convicted Mr. Davis. I actually asked for a heavier sentence than was imposed. The citizens of this county have not softened their views toward drug offenders, and neither have I, but by the same token I cannot condone such grave disparity in sentencing.
“I think our community, our jury, and our Court were correct in their approach to the drug problem. However, that we may be correct and others wrong in their assessment, does not enable me to continue to ignore the wrong that would be perpetrated upon Mr. Davis by his continued confinement. My conscious [sic] dictates that in view of the lack of any semblance of uniformity of sentencing throughout the nation in dealing with the drug problem, that Mr. Davis’s continued incarceration is grossly unjust.
“I trust that this is a fair summary of the content of our conversation, and if it is not, I hope you will please advise me.” Letter from Thomas B. Baird, Jr., to Edward L. Hogshire (Feb. 28, 1977).
This legislative action also undermines any claim that the state interest in having Davis serve a 40-year prison sentence is sufficiently strong to preclude invalidation of the sentence as disproportionate under the Eighth Amendment. See supra, at 381-383.
Justice Powell, concurring in the judgment, nevertheless concludes that the punishment imposed on Davis is not as disproportionate as that imposed on Rummel and that therefore the instant case is controlled by the facts of Rummel. Ante, at 379-380. But even if the punishment in the instant case could be determined, in the abstract, to be less severe than *387that imposed on Rummel, the fact remains that Rummel was sentenced as a habitual offender and this Court determined the State’s interest in imposing unusually harsh sentences on habitual offenders to be a substantial one. No comparable state interest has been offered to support the punishment inflicted here. Although it may be true that the respondent in the instant case has previously been convicted of a drug offense, he was not sentenced as a habitual offender, but for possession and distribution of less than nine ounces of marihuana. Indeed, while the trial judge, who made consecutive the jury’s recommended sentences of 20 years on each count, was aware of the respondent’s prior conviction, the jury, which awarded the sentences, was unaware that the respondent had previously been convicted. See Davis v. Davis, 585 F. 2d 1226, 1233 (CA4 1978).
Indeed, an increased rate of summary dispositions may prove to be counterproductive. As the bar becomes alert to the increased probability of summary disposition, lawyers responding to a petition for certiorari will likely choose to minimize the risk of summary disposition by taking the additional step of providing a full statement of their argument on the merits. As others have noted, this will only “mean additional and unnecessary work for the lawyer, expense to the client, and unessential reading matter for the already overburdened Court.” R. Stern & E. Gressman, Supreme Court Practice 365 (5th ed. 1978). Accord, Brown, Foreword: Process of Law, 72 Harv. L. Rev. 77, 81-82 (1958).
In view of this abuse, it is certainly startling that the Court should suggest that the Court of Appeals’ affirmance of the District Court in this case was tantamount to “anarchy.” Ante, at 375. Quite to the contrary, the Court of Appeals has only fiilfilled its constitutional responsibility to apply the Court’s precedents in light of reason and experience — something that this Court today has plainly failed to do.