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Sotomayor thinks historical practices, in Southern Union v. United States:

The Government and dissent place greater reliance on United States v. Tyler, 7 Cranch 285 (1812). But like Murphy, this decision involved no constitutional question. Rather, it construed a federal embargo statute that imposed a fine of four times the value of the property intended to be exported. The indictment identified the property at issue as “pearl-ashes,” but the jury’s guilty verdict referred instead to “‘pot-ashes [that] were worth two hundred and eighty dollars.’” Tyler, 7 Cranch, at 285.7 The question was whether the discrepancy rendered the verdict “not sufficiently certain as to the value of the property charged in the indictment,” i.e., pearl-ashes. Ibid. The Court held that the discrepancy was immaterial, on the ground that “under this law, no valuation by the jury was necessary to enable the Circuit Court to impose the proper fine.” Ibid. The Court’s reasoning is somewhat opaque, but appears to rest on the text of the embargo statute, which directed that the defendant “shall, upon conviction, be . . . fined a sum by the Court.” Ibid. In any event, nothing in the decision purports to construe the Sixth Amendment. And, insofar as Tyler reflects prevailing practice, it bears noting that both the indictment and verdict identified the value of the property at issue. See Tr. 2 in Tyler, 7 Cranch 285, reprinted in Appellate Case Files of the Supreme Court of the United States, 1792– 1831, National Archives Microfilm Publications No. 214 (1962), roll 18 (indictment: “nineteen barrels of pearlashes, which were then and there of the value of six hundred dollars”). Whatever the precise meaning of this decision, it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines.  

Breyer thinks the Court trumps:

The Court did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sen­ tencing fact. See ante, at 14. But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a differ­ ent interpretation

Is either opinion originalism? i don’t think citing 19th century cases is originalist. Mike Ramsey does.

In any event, Breyer seems to largely reject post-enactment originalism:

Taken together, the 19th-century cases upon which the majority rests its holding do not show anything about practice in the vast majority of States. They concede that common-law practice was to the contrary. And they tell us little about the meaning of the Sixth Amendment. Even were that not so, I do not understand why these mid-19th­ century cases should tell us more about the Constitution’s meaning than, say, the common 20th-century practice of leaving sentencing fact determinations to the judge. This Court apparently once approved the latter practice as constitutional. E.g., McMillan v. Pennsylvania, 477 U. S. 79 (1986); Almendarez-Torres, 523 U. S. 224. And these cases seem more closely related to the present topic.

So the scope of the question presented does actually mater.

Soto writes in Knox v. SEIU:

The majority agrees that SEIU’s actions were at odds with the First Amendment. Yet it proceeds, quite unnecessarily, to reach significant constitutional issues not contained in the questions presented, briefed, or argued. Petitioners did not question the validity of our precedents, which consistently have recognized that an opt-out system of fee collection comports with the Constitution. See Davenport v. Washington Ed. Assn., 551 U. S. 177, 181, 185 (2007); Hudson, 475 U. S., at 306, n. 16; Abood v. Detroit Bd. of Ed., 431 U. S. 209, 238 (1977); see also ante, at 12–13. They did not argue that the Constitution requires an opt-in system of fee collection in the context of special assessments or dues increases or, indeed, in any context. Not surprisingly, respondents did not address such a prospect. Under this Court’s Rule 14.1(a), “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” “[W]e disregard [that rule] ‘only in the most exceptional cases,’ where reasons of urgency or economy suggest the need to address the unpresented question in the case under consideration.” Yee v. Escondido, 503 U. S. 519, 535 (1992) (quoting Stone v. Powell, 428 U. S. 465, 481, n. 15 (1976)). The majority does not claim any such exceptional circumstance here. Yet it reaches out to hold that “when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.” Ante, at 22 (emphasis added); see also ante, at 17 (“[T]he union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out”). The majority thus decides, for the very first time, that the First Amendment does require an optin system in some circumstances: the levying of a special assessment or dues increase. The majority announces its novel rule without any analysis of potential countervailing arguments and without any reflection on the reliance interests our old rules have engendered. The majority’s choice to reach an issue not presented by the parties, briefed, or argued, disregards our rules. See Yee, 503 U. S., at 535. And it ignores a fundamental premise of our adversarial system: “‘that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’” NASA v. Nelson, 562 U. S. ___, ___, n. 10 (2011) (opinion for the Court by ALITO, J.) (slip op., at 11, n. 10) (quoting Carducci v. Regan, 714 F. 2d 171, 177 (CADC 1983) (opinion for the court by Scalia, J.)); see also Jefferson v. Upton, 560 U. S. ___, ___ (SCALIA, J., joined by THOMAS, J., dissenting) (slip op., at 8) (The majority’s “refusal to abide by standard rules of appellate practice is unfair to the . . . Circuit,” which did not pass on this question, “and especially to the respondent here, who suffers a loss in this Court without ever having an opportunity to address the merits of the . . . question the Court decides”). The imperative of judicial restraint is at its zenith here, with respect to an issue of such constitutional magnitude, for “[i]f there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” Clinton v. Jones, 520 U. S. 681, 690, n. 11 (1997) (internal quotation marks omitted)

Alito responds to this charge:

Contrary to JUSTICE SOTOMAYOR’s suggestion, our holding does not venture beyond the scope of the questions on which we granted review or the scope of the parties’ dispute. The second question on which we granted review broadly asks us to determine the circumstances under which a State may deduct from the pay of nonunion employees money that is used by a union for general electioneering. See Pet. for Cert. (i) (“May a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?”). Our holding—that this may be done only when the em- ployee affirmatively consents—falls within that question. Our holding also addresses the primary remaining dispute between the parties, namely, the particular procedures that must be followed on remand in order to provide adequate assurance that members of the class are not compelled to subsidize nonchargeable activities to which they object. See supra, at 7–8. Petitioners argue strenuously that these procedures must be narrowly tailored to minimize intrusion on their free-speech rights. See Brief for Petitioners 11–17. We see no sensible way to address this dispute without confronting the question whether, in the particular context present here, an opt-out regime suffices. JUSTICE SOTOMAYOR would apparently have us proceed on the assumption that an opt-out regime is permitted. She would then have us decide what sort of opt-out procedures would be sufficient if such a regime were allowed at all. But that is a question that simply cannot be answered. It would be like asking what sort of procedural requirements would be required if the government set out to do something else that the First Amendment flatly prohibits—for example, requiring prepublication approval of newspapers. There is also no merit in JUSTICE SOTOMAYOR’s and JUSTICE BREYER’s comments about prior precedent. This case concerns the procedures that must be followed when a public-sector union announces a special assessment or mid-year dues increase. No prior decision of this Court has addressed that question, and Hudson says not one word on the subject.

Here is how Sotomayor responds to the Majority.

The majority contends that its holding “does not venture beyond the scope of the questions on which we granted review,” pointing to the second question presented. Ante, at 22, n. 9. The majority is mistaken. That question concerns the chargeability of political and lobbying activities under Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 522 (1991), not the procedures by which a union may collect fees. See Pet. for Cert. (i); id., at 20–27 (describing scope of second question presented); id., at 23 (“There is a serious split, and confusion, among the circuits on the chargeability of union political and lobbying activities”). Indeed, it is only petitioners’ first question presented that deals with fee-collection procedures. And in that question, petitioners ask this Court to hold that SEIU may not collect its special assessment without providing a Hudson notice that offers “an opportunity to object to” the deduction of fees for the assessment. Id., at (i) (emphasis added). The phrase “opt in” appears not once in petitioners’ briefing. The majority protests that it cannot but hold that an opt-in regime is required, seeing as the opt-out regime the petitioners advocate is, in the majority’s view, unconstitutional. But if the Court was dissatisfied with the scope of the questions presented here it should not have granted certiorari in this case. Or having granted it, the Court should have asked for supplemental briefing on the question whether an opt-in regime is constitutionally required. What it should not have done— cannot do under our rules—is decide that question without having provided the parties and potential amici an opportunity to weigh in with their own considered views.

In Knox v. SEIU, Breyer dissents with Kagan, and challenges the Court’s decision:

The debate about public unions’ collective-bargaining rights is currently intense. The question of how a nonmember indicates a desire not to pay constitutes an important part of this debate. Must the union assume that the nonmember does not intend to pay unless he affirmatively indicates his desire to pay, by “opting in”? Or, may the union assume that the nonmember is willing to pay unless the nonmember indicates a desire not to pay, by “opting out”? Where, as here, nonchargeable political expenses are at issue, there may be a significant number of represented nonmembers who do not feel strongly enough about the union’s politics to indicate a choice either way. That being so, an “opt-in” requirement can reduce union revenues significantly, a matter of considerable importance to the union, while the additional protection it provides primarily helps only those who are politically near neutral. See generally Sunstein & Thaler, Libertarian Paternalism is not an Oxymoron, 70 U. Chi. L. Rev. 1159, 1161 (2003) (explaining that default rules play an important role when individuals do not have “welldefined preferences”). Consequently, the Court, which held recently that the Constitution permits a State to impose an opt-in requirement, see Davenport, 551 U. S., at 185, has never said that it mandates such a requirement. There is no good reason for the Court suddenly to enter the debate, much less now to decide that the Constitution resolves it.

The Constitution does not enact Mr. Sunstein’s social statics.

And in Southern Union v. US, Breyer also talks about nudging:

Today’s holding, by unnecessarily complicating the trial process, may prove workable only because it nudges our system slightly fur­ ther in this direction. I see no virtue in doing so.

 

Scalia opines on overcriminalization in Dorsey.

Winning!

Although the Constitution’s Ex Post Facto Clause, Art. I, §9, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not prohibit applying lower penalties. See Calder v. Bull, 3 Dall. 386, 390–391 (1798); Collins v. Youngblood, 497 U. S. 37, 41–44 (1990).

Calder must be one of the oldest cases cited on a somewhat regular basis–and it predates Marbury by 5 years.

And not to be outdone Scalia cites Marbury and Fletcher v. Peck.

Because “one legislature cannot abridge the powers of a succeeding legislature,” Fletcher v. Peck, 6 Cranch 87, 135 (1810), a statute is “alterable when the legislature shall please to alter it,” Marbury v. Madison, 1 Cranch 137, 177 (1803)