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NOTICE: This opinion is subject to formal revision before publication in the
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SUPREME COURT OF THE UNITED STATES
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No. 91-1231
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UNITED STATES, PETITIONER v. ALVIN J. DIXON
and MICHAEL FOSTER
on writ of certiorari to the district of columbia
court of appeals
[June 28, 1993]

  Justice Scalia announced the judgment of the Court
and delivered the opinion of the Court with respect to
Parts I, II, and IV, and an opinion with respect to Parts
III and V, in which Justice Kennedy joins.
  In both of these cases, respondents were tried for
criminal contempt of court for violating court orders that
prohibited them from engaging in conduct that was later
the subject of a criminal prosecution.  We consider whether
the subsequent criminal prosecutions are barred by the
Double Jeopardy Clause.
                      I
  Respondent Alvin Dixon was arrested for second-degree
murder and was released on bond.  Consistent with the
District of Columbia's bail law authorizing the judicial
officer to impose any condition that -will reasonably
assure the appearance of the person for trial or the safety
of any other person or the community,- D. C. Code Ann.
23-1321(a) (1989), Dixon's release form specified that he
was not to commit -any criminal offense,- and warned
that any violation of the conditions of release would
subject him -to revocation of release, an order of deten-
tion, and prosecution for contempt of court.-  See
23-1329(a) (authorizing those sanctions).
  While awaiting trial, Dixon was arrested and indicted

for possession of cocaine with intent to distribute, in
violation of D. C. Code Ann. 33-541(a)(1) (1988).  The
court issued an order requiring Dixon to show cause why
he should not be held in contempt or have the terms of
his pretrial release modified.  At the show-cause hearing,
four police officers testified to facts surrounding the
alleged drug offense; Dixon's counsel cross-examined these
witnesses and introduced other evidence.  The court
concluded that the Government had established -`beyond
a reasonable doubt that [Dixon] was in possession of
drugs and that those drugs were possessed with the intent
to distribute.'-  598 A. 2d 724, 728 (D. C. 1991).  The
court therefore found Dixon guilty of criminal contempt
under 23-1329(c), which allows contempt sanctions after
expedited proceedings without a jury and -in accordance
with principles applicable to proceedings for criminal
contempt.-  For his contempt, Dixon was sentenced to 180
days in jail.  D. C. Code 23-1329(c) (maximum penalty
of six months' imprisonment and $1000 fine).  He later
moved to dismiss the cocaine indictment on double jeop-
ardy grounds; the trial court granted the motion.
  Respondent Michael Foster's route to this Court is
similar.  Based on Foster's alleged physical attacks upon
her in the past, Foster's estranged wife Ana obtained a
civil protection order (CPO) in Superior Court of the
District of Columbia.  See D. C. Code Ann. 16-1005(c)
(1989) (CPO may be issued upon a showing of good cause
to believe that the subject -has committed or is threaten-
ing an intrafamily offense-).  The order, to which Foster
consented, required that he not -`molest, assault, or in
any manner threaten or physically abuse'- Ana Foster; a
separate order, not implicated here, sought to protect her
mother.  598 A. 2d, at 725-726.
  Over the course of eight months, Ana Foster filed three
separate motions to have her husband held in contempt
for numerous violations of the CPO.  Of the 16 alleged
episodes, the only charges relevant here are three separate
instances of threats (on November 12, 1987, and March
26 and May 17, 1988) and two assaults (on November 6,
1987, and May 21, 1988), in the most serious of which
Foster -threw [his wife] down basement stairs, kicking her
body[,] . . . pushed her head into the floor causing head
injuries, [and Ana Foster] lost consciousness.-  598 A. 2d,
at 726.
  After issuing a notice of hearing and ordering Foster to
appear, the court held a 3-day bench trial.  Counsel for
Ana Foster and her mother prosecuted the action; the
United States was not represented at trial, although the
United States Attorney was apparently aware of the
action, as was the court aware of a separate grand jury
proceeding on some of the alleged criminal conduct.  As
to the assault charges, the court stated that Ana Foster
would have -to prove as an element, first that there was
a Civil Protection Order, and then [that] . . . the assault
as defined by the criminal code, in fact occurred.-  Tr. in
Nos. IF-630-87, IF-631-87 (Aug. 8, 1988), p. 367; accord,
id., at 368.  At the close of the plaintiffs' case, the court
granted Foster's motion for acquittal on various counts,
including the alleged threats on November 12 and May
17.  Foster then took the stand and generally denied the
allegations.  The court found Foster guilty beyond a
reasonable doubt of four counts of criminal contempt
(three violations of Ana Foster's CPO, and one violation
of the CPO obtained by her mother), including the Novem-
ber 6, 1987 and May 21, 1988 assaults, but acquitted him
on other counts, including the March 26 alleged threats.
He was sentenced to an aggregate 600 days' imprison-
ment.  See 16-1005(f) (authorizing contempt punish-
ment); Sup. Ct. of D. C. Intrafamily Rules 7(c), 12(e)
(maximum punishment of six months' imprisonment and
$300 fine).
  The United States Attorney's Office later obtained an
indictment charging Foster with simple assault on or
about November 6, 1987 (Count I, violation of 22-504);
threatening to injure another on or about November 12,
1987, and March 26 and May 17, 1988 (Counts II-IV,
violation of 22-2307); and assault with intent to kill on
or about May 21, 1988 (Count V, violation of 22-501).
App. 43-44.  Ana Foster was the complainant in all
counts; the first and last counts were based on the events
for which Foster had been held in contempt, and the other
three were based on the alleged events for which Foster
was acquitted of contempt.  Like Dixon, Foster filed a
motion to dismiss, claiming a double jeopardy bar to all
counts, and also collateral estoppel as to Counts II-IV.
The trial court denied the double-jeopardy claim and did
not rule on the collateral-estoppel assertion.
  The Government appealed the double jeopardy ruling in
Dixon, and Foster appealed the trial court's denial of his
motion.  The District of Columbia Court of Appeals
consolidated the two cases, reheard them en banc, and,
relying on our recent decision in Grady v. Corbin, 495
U. S. 508 (1990), ruled that both subsequent prosecutions
were barred by the Double Jeopardy Clause.  598 A. 2d,
at 725.  In its petition for certiorari, the Government
presented the sole question -[w]hether the Double Jeop-
ardy Clause bars prosecution of a defendant on substan-
tive criminal charges based upon the same conduct for
which he previously has been held in criminal contempt
of court.-  Pet. for Cert. I.  We granted certiorari, 503
U. S. -- (1992).
                     II
  To place these cases in context, one must understand
that they are the consequence of an historically anomalous
use of the contempt power.  In both Dixon and Foster, a
court issued an order directing a particular individual not
to commit criminal offenses.  (In Dixon's case, the court
incorporated the entire criminal code; in Foster's case, the
criminal offense of simple assault.)  That could not have
occurred at common law, or in the 19th-century American
judicial system.
  At common law, the criminal contempt power was
confined to sanctions for conduct that interfered with the
orderly administration of judicial proceedings.  4 W.
Blackstone, Commentaries *280-*285.  That limitation
was closely followed in American courts.  See United
States v. Hudson and Goodwin, 7 Cranch. 32, 34 (1812);
R. Goldfarb, The Contempt Power 12-20 (1963).  Federal
courts had power to -inforce the observance of order,- but
those -implied powers- could not support common-law
jurisdiction over criminal acts.  Hudson and Goodwin,
supra, at 34.  In 1831, Congress amended the Judiciary
Act of 1789, allowing federal courts the summary con-
tempt power to punish generally -disobedience or resis-
tance- to court orders.  1, Act of March 2, 1831, 4 Stat.
487-488.  See Bloom v. Illinois, 391 U. S. 194, 202-204
(1968) (discussing evolution of federal courts' statutory
contempt power).
  The 1831 amendment of the Judiciary Act still would
not have given rise to orders of the sort at issue here,
however, since there was a long common-law tradition
against judicial orders prohibiting violation of the law.
Injunctions, for example, would not issue to forbid in-
fringement of criminal or civil laws, in the absence of
some separate injury to private interest.  See, e.g., 3
Blackstone, supra, at *426, n. 1; J. High, Law of Injunc-
tions 23, pp. 15-17, and notes (1873) (citing English
cases); C. Beach, Law of Injunctions 58-59, pp. 71-73
(1895) (same).  The interest protected by the criminal or
civil prohibition was to be vindicated at law-and though
equity might enjoin harmful acts that happened to violate
civil or criminal law, it would not enjoin violation of civil
or criminal law as such.  See, e.g., Sparhawk v. The
Union Passenger R. Co., 54 Pa. St. 401, 422-424 (1867)
(refusing to enjoin railroad's violation of Sunday closing
law); Attorney General v. The Utica Insurance Co., 2
Johns. Ch. 371, 378 (N. Y. 1817) (refusing to enjoin viola-
tion of banking statute).
  It is not surprising, therefore, that the double jeopardy
issue presented here-whether prosecution for criminal
contempt based on violation of a criminal law incorporated
into a court order bars a subsequent prosecution for the
criminal offense-did not arise at common law, or even
until quite recently in American cases.  See generally
Zitter, Contempt Finding as Precluding Substantive
Criminal Charges Relating to Same Transaction, 26
A. L. R. 4th 950, 953-956 (1983).  English and earlier
American cases do report instances in which prosecution
for criminal contempt of court-as originally understood-
did not bar a subsequent prosecution for a criminal
offense based on the same conduct.  See, e.g., King v.
Lord Ossulston, 2 Str. 1107, 93 Eng. Rep. 1063 (K. B.
1739); State v. Yancy, 4 N. C. 133 (1814).  But those
contempt prosecutions were for disruption of judicial
process, in which the disruptive conduct happened also to
be criminal.
  The Double Jeopardy Clause, whose application to this
new context we are called upon to consider, provides that
no person shall -be subject for the same offence to be
twice put in jeopardy of life or limb.-  U. S. Const., Amdt.
5.  This protection applies both to successive punishments
and to successive prosecutions for the same criminal
offense.  See North Carolina v. Pearce, 395 U. S. 711
(1969).  It is well established that criminal contempt, at
least the sort enforced through nonsummary proceedings,
is -a crime in the ordinary sense.-  Bloom, supra, at 201.
Accord, New Orleans v. The Steamship Co., 20 Wall. 387,
392 (1874).
  We have held that constitutional protections for criminal
defendants other than the double jeopardy provision apply
in nonsummary criminal contempt prosecutions just as
they do in other criminal prosecutions.  See, e.g., Gompers
v. Bucks Stove & Range Co., 221 U. S. 418, 444 (1911)
(presumption of innocence, proof beyond a reasonable
doubt, and guarantee against self-incrimination); Cooke
v. United States, 267 U. S. 517, 537 (1925) (notice of
charges, assistance of counsel, and right to present a
defense); In re Oliver, 333 U. S. 257, 278 (1948) (public
trial).  We think it obvious, and today hold, that
the protection of the Double Jeopardy Clause likewise
attaches.  Accord, Menna v. New York, 423 U. S. 61
(1975) (per curiam); Colombo v. New York, 405 U. S.
9 (1972) (per curiam).
  In both the multiple punishment and multiple prosecu-
tion contexts, this Court has concluded that where the two
offenses for which the defendant is punished or tried
cannot survive the -same-elements- test, the double
jeopardy bar applies.  See, e.g., Brown v. Ohio, 432 U. S.
161, 168-169 (1977); Blockburger v. United States, 284
U. S. 299, 304 (1932) (multiple punishment); Gavieres v.
United States, 220 U. S. 338, 342 (1911) (successive
prosecutions).  The same-elements test, sometimes referred
to as the -Blockburger- test, inquires whether each offense
contains an element not contained in the other; if not,
they are the -same offence- and double jeopardy bars
additional punishment and successive prosecution.  In a
case such as Yancy, for example, in which the contempt
prosecution was for disruption of judicial business, the
same-elements test would not bar subsequent prosecution
for the criminal assault that was part of the disruption,
because the contempt offense did not require the element
of criminal conduct, and the criminal offense did not
require the element of disrupting judicial business.
  We recently held in Grady that in addition to passing
the Blockburger test, a subsequent prosecution must
satisfy a -same-conduct- test to avoid the double jeopardy
bar.  The Grady test provides that, -if, to establish an
essential element of an offense charged in that prose-
cution, the government will prove conduct that constitutes
an offense for which the defendant has already been
prosecuted,- a second prosecution may not be had.  495
U. S., at 510.
                     III
                      A
  The first question before us today is whether
Blockburger analysis permits subsequent prosecution in
this new criminal contempt context, where judicial order
has prohibited criminal act.  If it does, we must then
proceed to consider whether Grady also permits it.  See
Grady, supra, at 516.
  We begin with Dixon.  The statute applicable in Dixon's
contempt prosecution provides that -[a] person who has
been conditionally released . . . and who has violated a
condition of release shall be subject to . . . prosecution for
contempt of court.-  23-1329(a).  Obviously, Dixon could
not commit an -offence- under this provision until an
order setting out conditions was issued.  The statute by
itself imposes no legal obligation on anyone.  Dixon's
cocaine possession, although an offense under D. C. Code
Ann. 33-541(a) (1988 and Supp. 1992), was not an
offense under 23-1329 until a judge incorporated the
statutory drug offense into his release order.
  In this situation, in which the contempt sanction is
imposed for violating the order through commission of the
incorporated drug offense, the later attempt to prosecute
Dixon for the drug offense resembles the situation that
produced our judgment of double jeopardy in Harris v.
Oklahoma, 433 U. S. 682 (1977) (per curiam).  There we
held that a subsequent prosecution for robbery with a
firearm was barred by the Double Jeopardy Clause,
because the defendant had already been tried for felony-
murder based on the same underlying felony.  We have
described our terse per curiam in Harris as standing for
the proposition that, for double jeopardy purposes, -the
crime generally described as felony murder- is not -a
separate offense distinct from its various elements.-
Illinois v. Vitale, 447 U. S. 410, 420-421 (1980).  Accord,
Whalen v. United States, 445 U. S. 684, 694 (1980).  So
too here, the -crime- of violating a condition of release
cannot be abstracted from the -element- of the violated
condition.  The Dixon court order incorporated the entire
governing criminal code in the same manner as the Harris
felony-murder statute incorporated the several enumerated
felonies.  Here, as in Harris, the underlying substantive
criminal offense is -a species of lesser-included offense.-
Vitale, supra, at 420.  Accord, Whalen, supra.
  To oppose this analysis, the Government can point only
to dictum in In re Debs, 158 U. S. 564, 594, 599-600
(1895), which, to the extent it attempted to exclude
certain nonsummary contempt prosecutions from various
constitutional protections for criminal defendants, has been
squarely rejected by cases such as Bloom, 391 U. S., at
208.  The Government also relies upon In re Chapman,
166 U. S. 661 (1897), and Jurney v. MacCracken, 294
U. S. 125 (1935), which recognize Congress' power to
punish as contempt the refusal of a witness to testify
before it.  But to say that Congress can punish such a
refusal is not to say that a criminal court can punish the
same refusal yet again.  Neither case dealt with that
issue, and Chapman specifically declined to address it,
noting that successive prosecutions (before Congress for
contemptuous refusal to testify and before a court for
violation of a federal statute making such refusal a crime)
were -improbable.-  166 U. S., at 672.
  Both the Government, Brief for United States 15-17,
and Justice Blackmun contend, post, at 3, that the legal
obligation in Dixon's case may serve -interests . . . funda-
mentally different- from the substantive criminal law,
because it derives in part from the determination of a
court rather than a determination of the legislature.  That
distinction seems questionable, since the court's power to
establish conditions of release, and to punish their viola-
tion, was conferred by statute; the legislature was the
ultimate source of both the criminal and the contempt
prohibition.  More importantly, however, the distinction
is of no moment for purposes of the Double Jeopardy
Clause, the text of which looks to whether the offenses are
the same, not the interests that the offenses violate.  And
this Court stated long ago that criminal contempt, at least
in its nonsummary form, -is a crime in every fundamental
respect.-  Bloom, supra, at 201; accord, e.g., Steamship
Co., 20 Wall., at 392.  Because Dixon's drug offense did
not include any element not contained in his previous con-
tempt offense, his subsequent prosecution violates the
Double Jeopardy Clause.
  The foregoing analysis obviously applies as well to
Count I of the indictment against Foster, charging assault
in violation of 22-504, based on the same event that was
the subject of his prior contempt conviction for violating
the provision of the CPO forbidding him to commit simple
assault under 22-504.  The subsequent prosecution for
assault fails the Blockburger test, and is barred.

                      B
  The remaining four counts in Foster, assault with intent
to kill (Count V; 22-501) and threats to injure or kidnap
(Counts II-IV; 22-2307), are not barred under
Blockburger.  As to Count V: Foster's conduct on May 21,
1988 was found to violate the Family Division's order that
he not -molest, assault, or in any manner threaten or
physically abuse- his wife.  At the contempt hearing, the
court stated that Ana Foster's attorney, who prosecuted
the contempt, would have to prove first, knowledge of a
CPO, and second, a willful violation of one of its condi-
tions, here simple assault as defined by the criminal
code.  See, e.g., 598 A. 2d, at 727-728; In re Thompson,
454 A. 2d 1324, 1326 (D. C. 1982); accord, Parker v.
United States, 373 A. 2d 907, 908 (D. C. 1982) (per cu-
riam).  On the basis of the same episode, Foster was then
indicted for violation of 22-501, which proscribes assault
with intent to kill.  Under governing law, that offense
requires proof of specific intent to kill; simple assault does
not.  See Logan v. United States, 483 A. 2d 664, 672-673
(D. C. 1984).  Similarly, the contempt offense required
proof of knowledge of the CPO, which assault with intent
to kill does not.  Applying the Blockburger elements test,
the result is clear: These crimes were different offenses
and the subsequent prosecution did not violate the Double
Jeopardy Clause.
  Counts II, III, and IV of Foster's indictment are likewise
not barred.  These charged Foster under 22-2307
(forbidding anyone to -threate[n] . . . to kidnap any person
or to injure the person of another or physically damage
the property of any person-) for his alleged threats on
three separate dates.  Foster's contempt prosecution
included charges that, on the same dates, he violated the
CPO provision ordering that he not -in any manner
threaten- Ana Foster.  Conviction of the contempt required
willful violation of the CPO-which conviction under
22-2307 did not; and conviction under 22-2307 required
that the threat be a threat to kidnap, to inflict bodily
injury, or to damage property-which conviction of the
contempt (for violating the CPO provision that Foster not
-in any manner threaten-) did not.  Each offense there-
fore contained a separate element, and the Blockburger
test for double jeopardy was not met.

                     IV
  Having found that at least some of the counts at issue
here are not barred by the Blockburger test, we must
consider whether they are barred by the new, additional
double jeopardy test we announced three Terms ago in
Grady v. Corbin.  They undoubtedly are, since Grady
prohibits -a subsequent prosecution if, to establish an
essential element of an offense charged in that prosecution
[here, assault as an element of assault with intent to kill,
or threatening as an element of threatening bodily injury],
the government will prove conduct that constitutes an
offense for which the defendant has already been prose-
cuted [here, the assault and the threatening, which
conduct constituted the offense of violating the CPO].-
495 U. S., at 510.
  We have concluded, however, that Grady must be
overruled.  Unlike Blockburger analysis, whose definition
of what prevents two crimes from being the -same of-
fence,- U. S. Const., Amdt. 5, has deep historical roots
and has been accepted in numerous precedents of this
Court, Grady lacks constitutional roots.  The -same-
conduct- rule it announced is wholly inconsistent with

earlier Supreme Court precedent and with the clear
common-law understanding of double jeopardy.  See, e.g.,
Gavieres v. United States, 220 U. S., at 345 (in subse-
quent prosecution, -[w]hile it is true that the conduct of
the accused was one and the same, two offenses resulted,
each of which had an element not embraced in the
other-).  We need not discuss the many proofs of these
statements, which were set forth at length in the Grady
dissent.  See 495 U. S., at 526 (Scalia, J., dissenting).
We will respond, however, to the contrary contentions of
today's pro-Grady dissents.
  The centerpiece of Justice Souter's analysis is an
appealing theory of a -successive prosecution- strand of
the Double Jeopardy Clause that has a different meaning
from its supposed -successive punishment- strand.  We
have often noted that the Clause serves the function of
preventing both successive punishment and successive
prosecution, see, e.g., North Carolina v. Pearce, 395 U. S.
711 (1969), but there is no authority, except Grady, for
the proposition that it has different meanings in the two
contexts.  That is perhaps because it is embarrassing to
assert that the single term -same offence- (the words of
the Fifth Amendment at issue here) has two different
meanings-that what is the same offense is yet not the
same offense.  Justice Souter provides no authority
whatsoever (and we are aware of none) for the bald
assertion that -we have long held that [the Government]
must sometimes bring its prosecutions for [separate]
offenses together.-  Post, at 5.  The collateral-estoppel
effect attributed to the Double Jeopardy Clause, see Ashe
v. Swenson, 397 U. S. 436 (1970), may bar a later
prosecution for a separate offense where the Government
has lost an earlier prosecution involving the same facts.
But this does not establish that the Government -must
. . . bring its prosecutions . . . together.-  It is entirely
free to bring them separately, and can win convictions in
both.  Of course the collateral estoppel issue is not raised
in this case.
  Justice Souter relies upon four cases to establish the
existence of some minimal antecedents to Grady.  Post, at
7-16.  The fountainhead of the -same-conduct- rule, he
asserts, is In re Nielsen, 131 U. S. 176 (1889).  That is
demonstrably wrong.  Nielsen simply applies the common
proposition, entirely in accord with Blockburger, that
prosecution for a greater offense (cohabitation, defined to
require proof of adultery) bars prosecution for a lesser
included offense (adultery).  That is clear from the Nielsen
Court's framing of the question (-Being of opinion, there-
fore, that habeas corpus was a proper remedy for the
petitioner, if the crime of adultery with which he was
charged was included in the crime of unlawful cohabita-
tion for which he was convicted and punished, that
question is now to be considered,- 131 U. S., at 185
(emphasis added)), from its legal analysis, id., at 186-189,
and from its repeated observations that cohabitation
required proof of adultery, id., at 187, 189.
  His second case comes almost a century later.  Brown
v. Ohio, 432 U. S. 161 (1977), contains no support for his
position except a footnote that cites Nielsen for the
proposition that -[t]he Blockburger test is not the only

standard for determining whether successive prosecutions
impermissibly involve the same offense.-  Brown, supra,
at 166-167, n. 6.  Not only is this footnote the purest
dictum, but it flatly contradicts the text of the opinion
which, on the very next page, describes Nielsen as the
first Supreme Court case to endorse the Blockburger rule.
Brown, supra, at 168.  Quoting that suspect dictum
multiple times, see post, at 6, 12, cannot convert it into
caselaw.  See United States National Bank of Oregon v.
Independent Ins. Agents of America, Inc., 508 U. S. --,
--, n. 11 (1993) (emphasizing -the need to distinguish
an opinion's holding from its dicta-).  The holding of
Brown, like that of Nielsen, rests squarely upon the
existence of a lesser included offense.  432 U. S., at 162
(setting out question presented).
  The third case is Harris, which Justice Souter asserts
was a reaffirmation of what he contends was the earlier
holding in Nielsen, that the Blockburger test is
-insufficien[t] for determining when a successive prosecu-
tion [is] barred,- and that conduct, and not merely ele-
ments of the offense must be the object of inquiry.  Post,
at 13.  Surely not.  Harris never uses the word -conduct,-
and its entire discussion focuses on the elements of the
two offenses.  See, e.g., 433 U. S., at 682-683, n. (to
prove felony murder, -it was necessary for all the ingredi-
ents of the underlying felony- to be proved).  Far from
validating Justice Souter's extraordinarily implausible
reading of Nielsen, Harris plainly rejects that reading,
treating the earlier case as having focused (like
Blockburger) upon the elements of the offense.  Immedi-
ately after stating that conviction for felony murder, a
-greater crime,- -cannot be had without conviction of the
lesser crime,- the Harris Court quotes Nielsen's statement
that -`a person [who] has been tried and convicted for a
crime which has various incidents included in it, . . .
cannot be a second time tried for one of those incidents.' -
433 U. S., at 682-683, quoting from 131 U. S., at 188.

It is clear from that context that Harris regarded -inci-
dents included- to mean -offenses included--a reference
to defined crimes rather than to conduct.
  Finally, Justice Souter misdescribes Vitale.  Despite
his bold assertion to the contrary, see post, at 15, Vitale
unquestionably reads Harris as merely an application of
the double jeopardy bar to lesser and greater included
offenses.  Justice Souter instead elevates the state-
ment in Vitale that, on certain hypothetical facts, the
petitioner would have a -substantial- -claim- of double
jeopardy on a Grady-type theory, see post, at 15, into a
holding that the petitioner would win on that theory.
Post, at 15, 21.  No Justice, the Vitale dissenters included,
has ever construed this passage as answering, rather than
simply raising, the question on which we later granted
certiorari in Grady.  See 447 U. S., at 426 (Stevens, J.,
dissenting) (in addition to finding the same-conduct claim
-substantial,- dissent would find it -dispositive-).  See also
Grady, 495 U. S., at 510 (Vitale -suggested- same-conduct
test adopted in Grady).
  In contrast to the above-discussed dicta relied upon by
Justice Souter, there are two pre-Grady (and post-
Nielsen) cases that are directly on point.  In both Gavieres
v. United States, 220 U. S., at 343, and Burton v. United
States, 202 U. S. 344, 379-381 (1906), the Court upheld
subsequent prosecutions after concluding that the
Blockburger test (and only the Blockburger test) was
satisfied.  These cases are incompatible with the belief
that Nielsen had created an additional requirement beyond
the -elements- standard.  Totally ignored by Justice
Souter are the many early American cases construing
the Double Jeopardy Clause, which support only an
-elements- test.  See Grady, supra, at 533-535 (Scalia,
J., dissenting).
  But Grady was not only wrong in principle; it has
already proved unstable in application.  Less than two
years after it came down, in United States v. Felix, 503
U. S. -- (1992), we were forced to recognize a large
exception to it.  There we concluded that a subsequent
prosecution for conspiracy to manufacture, possess, and
distribute methamphetamine was not barred by a previous
conviction for attempt to manufacture the same substance.
We offered as a justification for avoiding a -literal- (i.e.,
faithful) reading of Grady -longstanding authority- to the
effect that prosecution for conspiracy is not precluded by
prior prosecution for the substantive offense.  Felix, supra,
at -- - -- (slip op., at 10-13).  Of course the very
existence of such a large and longstanding -exception- to
the Grady rule gave cause for concern that the rule was
not an accurate expression of the law.  This -past prac-
tice- excuse is not available to support the ignoring of
Grady in the present case, since there is no Supreme
Court precedent even discussing this fairly new breed of
successive prosecution (criminal contempt for violation of
a court order prohibiting a crime, followed by prosecution
for the crime itself).
  A hypothetical based on the facts in Harris reinforces
the conclusion that Grady is a continuing source of
confusion and must be overruled.  Suppose the State first
tries the defendant for felony-murder, based on robbery,
and then indicts the defendant for robbery with a firearm
in the same incident.  Absent Grady, our cases provide a
clear answer to the double-jeopardy claim in this situation.
Under Blockburger, the second prosecution is not
barred-as it clearly was not barred at common law, as
a famous case establishes.  In King v. Vandercomb, 2
Leach. 708, 717, 168 Eng. Rep. 455, 460 (K. B. 1796), the
government abandoned, midtrial, prosecution of defendant
for burglary by breaking and entering and stealing goods,
because it turned out that no property had been removed
on the date of the alleged burglary.  The defendant was
then prosecuted for burglary by breaking and entering
with intent to steal.  That second prosecution was al-
lowed, because -these two offences are so distinct in their
nature, that evidence of one of them will not support an
indictment for the other.-  Ibid.  Accord, English and
American cases cited in Grady, 495 U. S., at 532-535
(Scalia, J., dissenting).
  Having encountered today yet another situation in
which the pre-Grady understanding of the Double Jeop-
ardy Clause allows a second trial, though the -same-
conduct- test would not, we think it time to acknowledge
what is now, three years after Grady, compellingly clear:
the case was a mistake.  We do not lightly reconsider a
precedent, but, because Grady contradicted an -unbroken
line of decisions,- contained -less than accurate- historical
analysis, and has produced -confusion,- we do so here.
Solorio v. United States, 483 U. S. 435, 439, 442, 450
(1987).  Although stare decisis is the -preferred course- in
constitutional adjudication, -when governing decisions are
unworkable or are badly reasoned, `this Court has never
felt constrained to follow precedent.'-  Payne v. Tennessee,
501  U. S. --, -- (1991) (quoting Smith v. Allwright,
321 U. S. 649, 665 (1944), and collecting examples).  We
would mock stare decisis and only add chaos to our double
jeopardy jurisprudence by pretending that Grady survives
when it does not.  We therefore accept the Government's
invitation to overrule Grady, and Counts II, III, IV, and
V of Foster's subsequent prosecution are not barred.

                      V
  Dixon's subsequent prosecution, as well as Count I of
Foster's subsequent prosecution, violate the Double Jeop-
ardy Clause.  For the reasons set forth in Part IV, the
other Counts of Foster's subsequent prosecution do not
violate the Double Jeopardy Clause.  The judgment of
the District of Columbia Court of Appeals is affirmed in
part and reversed in part, and the case is remanded for
proceedings not inconsistent with this opinion.

                            It is so ordered.