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ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

ROBERT K. WONG, WARDEN v. ANTHONY BERNARD 

SMITH, JR. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 09–1031. Decided November 1, 2010

The petition for a writ of certiorari is denied. 

JUSTICE ALITO, with whom THE CHIEF JUSTICE and 

JUSTICE SCALIA join, dissenting from denial of certiorari. 

The Court of Appeals granted habeas relief in this case 

after concluding that a state trial judge unconstitutionally 

coerced the jury by commenting and offering an opinion on 

the evidence. Because that decision cannot be reconciled 

with the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), see 28 U. S. C. §2254(d)(1), and gives short 

shrift to a venerable common-law practice, I would grant 

the petition for writ of certiorari. 

I 

After they learned that Eugene and Deanna S. had won

some money at a casino, respondent Anthony Smith and 

codefendant James Hinex drove to the couple’s Sacramento home, burglarized it, and robbed both victims at

gunpoint. During the robbery, one of the defendants put a 

gun to the head of Mrs. S. and forced her to perform oral

copulation. Both Smith and Hinex were arrested and 

charged under California law with one count of residential 

burglary and two counts of residential robbery. Cal. Penal 

Code Ann. §§459 (West 2010), 211 (West 2008). Smith 

was also charged with forcible oral copulation. §288a(c) 

(West 2008). At trial, the jury deliberated for a little over 

two days before convicting both defendants on the burglary and robbery counts. The jury had a more difficult 
2 WONG v. SMITH 

ALITO, J., dissenting 

time reaching agreement on the oral-copulation count. 

Tests showed that semen recovered from the crime scene 

matched Smith’s DNA, but Mrs. S. had originally identified Hinex as her attacker. 

On the fourth day of deliberations, one juror sent the

judge a note stating that he was unable to vote to convict 

Smith on the oral-copulation count because he thought the

DNA evidence was unreliable. The trial judge then gave 

the jury a modified version of an Allen charge. See Allen 

v. United States, 164 U. S. 492 (1896). When further 

deliberations proved fruitless, the judge decided to exercise the judicial authority, as recognized by the State 

Constitution, to “comment on the evidence.” See Cal. 

Const., Art. VI, §10. 

At the outset, the judge reminded the jurors that they

were the “‘exclusive judges of the facts.’” Smith v. Curry, 

580 F. 3d 1071, 1077 (CA9 2009). He explained that his

comments were not intended “‘to impose [his] will’” on the 

jury, but only to review “certain evidence” that they “‘may

not have considered.’” Ibid. The judge thought it “‘important’” for the jury to consider the statements Smith and

Hinex “‘made to law enforcement following their arrests,’” 

particularly the “‘consistencies and inconsistencies’” 

between those statements. Ibid. The judge pointed out 

that Smith told police that both he and Hinex entered the

house. Smith stated that he found Mrs. S. in a back bedroom, that Smith was armed at the time, and that Mrs. S. 

gave Smith a $100 bill. Id., at 1077–1078. The judge 

noted that Hinex also “‘said Smith went to the back of the 

house . . . and closed the door.’” Id., at 1077. But Hinex 

denied going inside the house himself. The judge played 

the tapes of both defendants’ statements for the jury. He 

told them to consider and discuss the statements during

deliberations. Finally, the judge reiterated that his “‘comments [were] advisory only’” and that the jurors remained

“‘the exclusive judges’” of the facts and the “‘credibility of 
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ALITO, J., dissenting 

witnesses. ’” Id., at 1078. The jury continued their deliberations; a short time later, they returned a guilty verdict

against Smith on the oral-copulation count.

Smith argued on appeal that the judge’s comments 

coerced the jury’s verdict. A California intermediate 

appellate court rejected that claim. The California Supreme Court denied review. Smith then filed a federal

petition for writ of habeas corpus, 28 U. S. C. §2254, which

the District Court granted. A split Ninth Circuit panel 

affirmed. 

II 

Smith’s claim on federal habeas is that the California 

appellate court unreasonably applied this Court’s clearly 

established law forbidding coercive jury instructions. 

§2254(d)(1); see Brief in Opposition 12. “[C]learly established” law under §2254(d)(1) consists of “the holdings, as 

opposed to the dicta, of this Court’s” cases. Williams v. 

Taylor, 529 U. S. 362, 412 (2000). An “unreasonable application” of that law involves not just an erroneous or 

incorrect decision, but an objectively unreasonable one. 

Renico v. Lett, 559 U. S. ___ (2010).

The clearly established law relevant to this case is 

sparse. Just one of this Court’s decisions, Lowenfield v. 

Phelps, 484 U. S. 231 (1988), has addressed the constitutional rule against coercive jury instructions. And Lowenfield held only that, on the totality of the circumstances

present there, no unconstitutional coercion resulted. Id., 

at 241. The Court has also decided several cases on the 

specific practice of judicial comment on the evidence. E.g., 

Quercia v. United States, 289 U. S. 466 (1933). But all of 

those cases arose under this Court’s supervisory power 

over federal courts; they set no clearly established constitutional limits under AEDPA. See Early v. Packer, 537 

U. S. 3, 10 (2002) (per curiam). As a result, the clearly

established law in this area provides very little specific 
4 WONG v. SMITH 

ALITO, J., dissenting 

guidance. About all that can be said is that coercive instructions are unconstitutional, coerciveness must be 

judged on the totality of the circumstances, and the facts 

of Lowenfield (polling a deadlocked jury and reading a 

slightly modified Allen charge) were not unconstitutionally 

coercive. See 484 U. S., at 237–241. 

A general standard such as this gives state courts wide

latitude for reasonable decisionmaking under AEDPA. 

Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) (“The

more general the rule, the more leeway courts have in

reaching outcomes in case-by-case determinations”). That 

latitude is wider still in this case, as no constitutional 

decision of this Court has ever explained how the general 

rule against “coercion” applies to the traditional practice of

judicial comment on the evidence. Cf. Carey v. Musladin, 

549 U. S. 70, 76 (2006).

For centuries, trial judges have enjoyed authority to

comment on the evidence. At common law, the judge was 

empowered to “weig[h] the evidence” and share an “opinion” with the jury, even “in matter of fact.” 2 M. Hale, 

History of the Common Law of England 147 (5th ed. 1794) 

(hereinafter Hale).* The practice is well established in

this Court’s cases as well. The Court has recognized that

a trial judge has “discretion” to “comment upon the evidence,” to call the jury’s “attention to parts of it which he

thinks important,” and to “express his opinion upon the 

facts.” Vicksburg & Meridian R. Co. v. Putnam, 118 U. S. 

545, 553 (1886); Quercia, supra, at 469. 

—————— 

*See J. Thayer, Preliminary Treatise on Evidence at Common Law

188, n. 2 (1898) (trial by jury “in a form which would withhold from the

jury the assistance of the court in dealing with the facts” is not “trial by

jury in any historic sense of the word”); 9 J. Wigmore, Evidence §2551,

p. 664 (J. Chadbourn rev. 1981) (hereinafter Wigmore) (comment on the 

evidence “existed at common law since the beginning of jury trial, and

must be regarded historically as an essential and inseparable part of

jury trial”). 
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ALITO, J., dissenting 

To be sure, the practice has for many years been on the 

wane. Comment on the evidence has always been more

popular in Britain than it ever was in this country. See 9 

Wigmore §2551, at 666. That said, federal courts and 

several States continue to recognize judicial authority to

comment on the evidence, and California expressly protects the practice in its State Constitution. Cal. Const.,

Art. VI, §10.

This long tradition, combined with the complete absence 

of constitutional precedent on how to apply Lowenfield’s 

anticoercion principle in this context, shows that federal

courts should tread lightly when faced with a claim that

judicial comment on the evidence runs afoul of clearly

established federal law. Outside of extreme cases, most 

decisions approving traditional uses of this common-law

practice should fall within the bounds of reasonable decisionmaking under AEDPA. 

III 

Here, the California appellate court did not unreasonably apply this Court’s clearly established law. The trial 

judge, before commenting on the evidence, made clear that

the jurors remained the exclusive judges of the facts and

that the judge’s comments were advisory only. 580 F. 3d, 

at 1077. The judge then directed the jurors to particular 

evidence—the defendants’ initial statements to police—

and highlighted for them certain “‘consistencies and inconsistencies’” between those statements. Ibid. This 

practice of drawing the jury’s “attention to parts” of the 

evidence that the judge thinks “‘important’” lies at the

recognized core of the common-law power to comment on

the evidence. See Vicksburg, supra, at 553; Hale 147 (The

judge “is able, . . . in matters of fact, to give [the jury]

great light and assistance, by . . . observing where the

question and knot of the business lies; and by showing 

them his opinion even in matter of fact” (some capitaliza-
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ALITO, J., dissenting 

tion omitted)). Neither the trial judge’s decision to employ

the practice here nor the state appellate court’s approval

of the instruction ran afoul of clearly established federal 

law. 

The Ninth Circuit’s contrary decision rested in large

measure on its concern that the comments “pointed the 

jury to evidence leading to a particular verdict,” while

omitting to mention other evidence favorable to Smith.

580 F. 3d, at 1081, 1083. But the common-law privilege to 

comment on the evidence has never required a compendious summary. Rather, the judge has traditionally enjoyed

the power to focus on the particular evidence the judge

thinks important, and to share with the jury an opinion on

that evidence. Vicksburg, supra, at 553; Quercia, 289 

U. S., at 469. It was not unreasonable under this Court’s 

clearly established law for the California appellate court to

approve that practice here. 

The Ninth Circuit’s opinion also suggests that, when a 

jury is “deadlocked,” the judge may provide only “appropriate encouragement . . . to deliberate,” and must refrain 

from providing the “judge’s selective view of the evidence.” 

580 F. 3d, at 1080. None of this Court’s constitutional 

cases establish such a rule. And this Court’s supervisorypower cases (which, if anything, set a more demanding

standard than the constitutional minimum) have specifically upheld judicial comments that provide a particular 

“view of the evidence” to an apparently deadlocked jury. 

See Simmons v. United States, 142 U. S. 148, 155 (1891) 

(no error where judge denied deadlocked jury’s request to 

be discharged and told them “that he regarded the testimony as convincing”). Nothing in this Court’s clearly 

established law prohibits the trial judge from offering an 

opinion to a jury that is struggling to reach a verdict. 

The Ninth Circuit was also troubled that the trial 

judge’s comments appeared to be designed to address the

concerns of the holdout juror. 580 F. 3d, at 1082. And the 
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ALITO, J., dissenting 

panel majority disapproved of the trial judge’s “mandatory

language” directing the jury to “‘consider and discuss’” the 

evidence highlighted by the court. Id., at 1082–1083. 

Whatever potential for coercion these comments caused, 

the California appellate court’s decision upholding them 

“was clearly not unreasonable” under the general Lowenfield standard. See Renico, 559 U. S., at ___ (slip op., at 

12). I would grant certiorari in this case and correct the 

Ninth Circuit’s error.