714
Opinion of Rehnquist, C. J.
therefore join Parts I, II, and IV of the Court's opinion, and write separately to express my disagreement with Justice Scalia's application of Blockburger in Part III.
In my view, Blockburger's same-elements test requires us to focus, not on the terms of the particular court orders involved, but on the elements of contempt of court in the ordinary sense. Relying on Harris v. Oklahoma, 433 U. S. 682 (1977), a three-paragraph per curiam in an unargued case, Justice Scalia concludes otherwise today, and thus incorrectly finds in Part III-A of his opinion that the subsequent prosecutions of Dixon for drug distribution and of Foster for assault violated the Double Jeopardy Clause. In so doing, Justice Scalia rejects the traditional view—shared by every Federal Court of Appeals and State Supreme Court that addressed the issue prior to Grady—that, as a general matter, double jeopardy does not bar a subsequent prosecution based on conduct for which a defendant has been held in criminal contempt. I cannot subscribe to a reading of Harris that upsets this previously well-settled principle of law. Because the generic crime of contempt of court has different elements than the substantive criminal charges in this case, I believe that they are separate offenses under Blockburger. I would therefore limit Harris to the context in which it arose: where the crimes in question are analogous to greater and lesser included offenses. The crimes at issue here bear no such resemblance.
Justice Scalia dismisses out-of-hand, see ante, at 699, the Government's reliance on several statements from our prior decisions. See In re Debs, 158 U. S. 564, 594, 599-600 (1895); In re Chapman, 166 U. S. 661, 672 (1897); Jurney v. MacCracken, 294 U. S. 125, 151 (1935). Those statements are dicta, to be sure, and thus not binding on us as stare decisis. Yet they are still significant in that they reflect the unchallenged contemporaneous view among all courts that the Double Jeopardy Clause does not prohibit separate prosecutions for contempt and a substantive offense based
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