Cite as: 509 U. S. 688 (1993)
Opinion of Rehnquist, C. J.
on the same conduct.1 This view, which dates back to the English common law, see F. Wharton, Criminal Pleading and Practice § 444, p. 300 (8th ed. 1880), has prevailed to the present day. See generally 21 Am. Jur. 2d, Criminal Law § 250, p. 446 (1981). In fact, every Federal Court of Appeals and state court of last resort to consider the issue before Grady agreed that there is no double jeopardy bar to successive prosecutions for criminal contempt and substantive criminal offenses based on the same conduct. See, e. g., Hansen v. United States, 1 F. 2d 316, 317 (CA7 1924); Orban v. United States, 18 F. 2d 374, 375 (CA6 1927); State v. Sammons, 656 S. W. 2d 862, 868-869 (Tenn. Crim. App. 1982); Commonwealth v. Allen, 506 Pa. 500, 511-516, 486 A. 2d 363, 368-371 (1984), cert. denied, 474 U. S. 842 (1985); People v. Totten, 118 Ill. 2d 124, 134-139, 514 N. E. 2d 959, 963-965 (1987).2 It is somewhat ironic, I think, that Justice Scalia today adopts a view of double jeopardy that did not come to the fore until after Grady, a decision which he (for the Court) goes on to emphatically reject as "lack[ing] constitutional roots." Ante, at 704.
At the heart of this pre-Grady consensus lay the common belief that there was no double jeopardy bar under Block-burger. There, we stated that two offenses are different for
1 Justice Scalia suggests that the dicta in those earlier cases are of limited value in light of Bloom v. Illinois, 391 U. S. 194 (1968), which held that the Sixth Amendment right to a jury trial applies to nonsummary contempt prosecutions. But there is simply no reason to think that the dicta in those cases were based on the understanding that prosecutions for contempt were not subject to the Double Jeopardy Clause. Rather, the principal theme running through the pre-Grady cases is that, while nonsummary contempt is a criminal prosecution, that prosecution and the later one for a substantive offense involve two separate and distinct offenses.
2 The Court's discussion of the use of the contempt power at common law and in 19th-century America, see ante, at 694-695, does not undercut the relevance of these later, pre-Grady decisions—most of which are from the late 20th century—to the instant case.
715
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