Justice Alito, joined by Chief Justice Roberts and Justice Scalia, dissented from the denial of cert in Wong v. Smith. Alito contends that a “state trial judge . . . commenting and offering an opinion on evidence” is not “clearly established law” for purposes of AEDPA and 2254(d)(1), and does not constitute unlawful coercion of the jury.

In this case, the Ninth Circuit found that the California appellate court unreasonably applied clearly established Supreme Court law. Alito concedes that only one Supreme Court opinion is on point, Lowenfield v. Phelps, 484 U. S. 231 (1988). In this case the Court did not find an unconstitutional coercion. Alito also cites the case of Quercia v. United States, 289 U. S. 466 (1933), in which the trial judge gave his opinion about the validity of witness testimony. The Court held that that was unconstitutional:

In the instant case, the trial judge did not analyze the evidence; he added to it, and he based his instruction upon his own addition. Dealing with a mere mannerism of the accused in giving his testimony, the judge put his own experience, with all the weight that could be attached to it, in the scale against the accused. He told the jury that “wiping” one’s hands while testifying was “almost always an indication of lying.” Why it should be so, he was unable to say, but it was “the fact.” He did not review the evidence to assist the jury in reaching the truth, but in a sweeping denunciation repudiated as a lie all that the accused had said in his own behalf which conflicted with the statements of the Government’s witnesses. This was error and we cannot doubt that it was highly prejudicial.

However, both of these cases arose on direct appeal, and not under AEDPA. Accordingly, Alito found that “the clearly established law in this area provides very little specific guidance.”

Alito provides a historical narrative showing that at common law, judges preserved the right to opine on evidence and testimony.

For centuries, trial judges have enjoyed authority tocomment on the evidence. At common law, the judge was empowered to “weig[h] the evidence” and share an “opin-ion” 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 inthis Court’s cases as well. The Court has recognized thata trial judge has “discretion” to “comment upon the evi-dence,” to call the jury’s “attention to parts of it which hethinks 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

Interestingly, Article VI, Section 10 of California’s Constitution specifically permits Judge’s to opine on evidence:

The court may make any comment on the evidence and the testimony and credibility of any witness as in its opinion is necessary for the proper determination of the cause.

As Lyle Deniston points out, the dissenters could not garner a fourth vote necessary in order to grant cert on this case. Perhaps we may see a cert grant on this topic if the lower courts pick up on Alito’s dissent.