840
Scalia, J., concurring
would yield the same result here, there is no need to decide which is the correct one—and a case so extreme on its facts is not the best case in which to make that decision. I wish to suggest, however, that when we come to making it, a careful examination of historical practice will ultimately yield the answer.
That one and the same person should be able to make the rule, to adjudicate its violation, and to assess its penalty is out of accord with our usual notions of fairness and separation of powers. See ante, at 831; Green v. United States, 356 U. S. 165, 198-199 (1958) (Black, J., dissenting); cf. Bloom v. Illinois, 391 U. S. 194, 202 (1968); Cooke v. United States, 267 U. S. 517, 539 (1925). And it is worse still for that person to conduct the adjudication without affording the protections usually given in criminal trials. Only the clearest of historical practice could establish that such a departure from the procedures that the Constitution normally requires is not a denial of due process of law. See Burnham v. Superior Court of Cal., County of Marin, 495 U. S. 604, 623-625 (1990); cf. Honda Motor Co. v. Oberg, ante, at 430-431.
At common law, contempts were divided into criminal contempts, in which a litigant was punished for an affront to the court by a fixed fine or period of incarceration; and civil contempts, in which an uncooperative litigant was incarcerated (and, in later cases, fined*) until he complied with a specific order of the court. See Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 441-444 (1911). Incarceration until compliance was a distinctive sanction, and sheds light upon the nature of the decrees enforced by civil contempt. That sanction makes sense only if the order requires performance
*The per diem fines that came to be used to coerce compliance with decrees were in most relevant respects like conditional prison terms. With them, as with incarceration, the penalty continued until the contemnor complied, and compliance stopped any further punishment but of course did not eliminate or restore any punishment already endured.
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