740
Opinion of White, J.
not by their grade, but by their nature," id., at 350, prosecuting Grafton for assassination meant twice putting him in jeopardy for the same offense.
I would dispose of Foster's case in like fashion, and focus on what Justice Scalia overlooks: The interests safeguarded by the Double Jeopardy Clause, and the fact that Foster should not have to defend himself twice against the same charges. When the case is so viewed, the condition that Foster be subject to a contempt order as a practical matter is analogous to the condition that Grafton be a soldier, for it triggered the court's authority to punish offenses already prescribed by the criminal law. At that point, the relevant comparison for double jeopardy purposes should be between the offenses charged in the two proceedings.
III
Once it is agreed that the Double Jeopardy Clause applies in this context, the Clause, properly construed, both governs this case and disposes of the distinction between Foster's charges upon which Justice Scalia relies. I therefore see little need to draw Grady into this dispute. In any event, the United States itself has not attempted to distinguish between Dixon and Foster or between the charges of "assault" on the one hand and, on the other, "assault with intent to kill" and "threat to injure another." The issue was not raised before the Court of Appeals or considered by it, and it was neither presented in the petition for certiorari nor briefed by either party. Under these circumstances, it is injudicious to address this matter. See, e. g., Mazer v. Stein, 347 U. S. 201, 206, n. 5 (1954); Adickes v. S. H. Kress & Co., 398 U. S. 144, 147, n. 2 (1970).
The majority nonetheless has chosen to consider Grady anew and to overrule it. I agree with Justice Blackmun and Justice Souter that such a course is both unwarranted and unwise. See post, at 741, 744. Hence, I dissent from the judgment overruling Grady.
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