720
Opinion of White, J.
tempt, did not violate the Double Jeopardy Clause, at least before our decision in Grady. Under Grady, "the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U. S., at 510. As the Court points out, see ante, at 703-704, this case undoubtedly falls within that expansive formulation: To secure convictions on the substantive criminal charges in this case, the Government will have to prove conduct that was the basis for the contempt convictions. Forced, then, to confront Grady, I join the Court in overruling that decision.
Justice White, with whom Justice Stevens joins, and with whom Justice Souter joins as to Part I, concurring in the judgment in part and dissenting in part.
I am convinced that the Double Jeopardy Clause bars prosecution for an offense if the defendant already has been held in contempt for its commission. Therefore, I agree with the Court's conclusion that both Dixon's prosecution for possession with intent to distribute cocaine and Foster's prosecution for simple assault were prohibited. In my view, however, Justice Scalia's opinion gives short shrift to the arguments raised by the United States. I also am uncomfortable with the reasoning underlying this holding, in particular the application of Blockburger v. United States, 284 U. S. 299 (1932), to the facts of this case, a reasoning that betrays an overly technical interpretation of the Constitution. As a result, I concur only in the judgment in Part III-A.
The mischief in the Court's approach is far more apparent in the second portion of today's decision. Constrained by its narrow reading of the Double Jeopardy Clause, it asserts that the fate of Foster's remaining counts depends on Grady v. Corbin, 495 U. S. 508 (1990), which the Court then chooses
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