Rarely, if ever, has a sitting American judge spoken out publicly on the threat of anti-Semitism in America. However, here, Justice David N. Wecht, a judge serving on the Supreme Court of Pennsylvania, the highest court in the state and the oldest Supreme Court in the nation, has chosen to speak out boldly and firmly about what he perceives to be a national crisis.
The Honorable David N. Wecht was elected by the citizens of Pennsylvania to a 10-year term on the Pennsylvania Supreme Court in 2015. His father’s parents ran a grocery store not far from where Justice Wecht was sworn in. Before his election to the state’s Supreme Court, he served four years on the Pennsylvania Superior Court (the state’s intermediate appellate court). He attended Yale University and Yale Law School, where he served as notes editor of the Yale Law Journal, and then clerked for Judge George MacKinnon of the U.S. Court of Appeals for the District of Columbia Circuit.
Justice Wecht and his wife were married at the Tree of Life synagogue in the Squirrel Hill neighborhood of Pittsburgh, where he grew up. Tree of Life was the site of the Oct. 27, 2018, attack in which 11 Jews were murdered by a white supremacist.
I interviewed Justice Wecht in March of this year.
Joel Cohen: Justice Wecht, in our talks over the past six months, you seem concerned and troubled, almost horrified, by rising anti-Semitism, particularly in America. How has this concern come to you so urgently?
David N. Wecht: I’ve always been firm in my Jewish identity. That hasn’t changed. What has changed is what’s going on in America and the world at large. The influences are those that I have felt since my childhood. There’s been no recent epiphany for me. I didn’t wake up after U.S. Representative [Ilhan] Omar’s remarks, suddenly oriented to outbreaks of anti-Semitism. What’s changed, I think, is a tolerance for anti-Semitism here in America. And you’re absolutely right to use the word “horrified.” I am.
JC: What have you observed lately, aside from Congresswoman Omar’s provocative comments, that makes you more troubled?
DW: Well, first of all, six months ago 11 Jews were murdered at the Tree of Life synagogue in Squirrel Hill, in the very sanctuary where my wife and I were married some 21 years ago. It’s impossible even to describe what that means. I’m still coming to terms with that.
JC: You say it’s “indescribable.” But try to describe it.
DW: Well, there’s clearly an increase in the expression of hatred toward Jews in America. Put aside for the moment the tremendous upsurge in anti-Jewish hate worldwide. Focusing on this country, all statistics and anecdotal evidence make clear that there’s an upsurge in anti-Semitism in recent years. And it seems to only be increasing. The most apt description that I’ve read recently comes from my fellow Pittsburgher, Bari Weiss. She observed that there are both “Purim” and “Hanukkah” forms of anti-Semitism. “Purim anti-Semitism” is identified mostly with ultra-right-wing groups, as perfected by the Nazis. Simply put, this form of Jew-hatred wants to kill all the Jews (as did Haman). In “Hanukkah anti-Semitism,” Jews are vilified for expressing themselves as Jews and are discouraged from identifying as Jews or as supporters of Israel.
The first of these is more direct and more violent, but the latter form of anti-Semitism is far more widespread and far more insidious. The Hellenization phenomenon is embodied in the idea of “good Jews” and “bad Jews.” The “good Jews” distance themselves from Zionism and Israel. They embrace the cause of any persecuted minority group other than the Jewish people. They become ashamed of being Jewish and enlist themselves in every cause except that of Jews. The “bad Jews” insist on the value of Jewish heritage, on Zionism, on Ahavat Yisrael (love of one’s fellow Jews), and on being proud to be Jewish and identifying as Jewish. I’m trying to give my own characterization of this dichotomy, which is imperfect, but I think very telling.
JC: Taking it from there, you’re a sitting judge. The courts are designed to keep the biases, prejudices, and partisanships of the real world outside—to make the courtroom a pristine environment where cases are tried and later appealed. Judges try to keep all of that “stuff” out of the courtroom. Surely, your personal beliefs about anti-Semitism make you think a lot about it when you leave the courthouse. Still, as a judge, as a practical matter, can you actually do anything to help address your concerns about rising anti-Semitism?
DW: The one word answer is no. It’s not the bread and butter of my professional work. My job as an appellate jurist doesn’t involve me addressing these topics, and so I address them in my personal time and my personal life. I don’t deny that this is somewhat frustrating when anti-Semitism is rising so clearly. So what I can do is this: I can speak and write about anti-Semitism.
JC: But what about when it does become part of your bread and butter? What if a matter comes before you where anti-Semitism or anti-Zionism, or both, are an issue in a case before you? What do you do to deal with your personal beliefs—your “priors,” in Judge Richard Posner’s term—that might, consciously or unconsciously, propel you in one direction or the other in deciding a case?
DW: The Constitution and laws are the same for anti-Semites as for anyone else. That’s why the Nazis could march in Skokie, just like any other bigots. Jews do themselves no favors when they weight the scales of justice. I’ve never had to recuse from a case on account of my Jewish identity. I’d be surprised if I’d ever feel compelled to do so. That’s not what America is about. I’ll keep an open mind. We’ll have to see what the future brings.
JC: Let me pursue your career choice, and strip you of your judgeship for a moment, if I may. Assume you weren’t restricted by the ethical constraints regarding what a judge can or cannot do. How would you change society to address rising anti-Semitism? What would you want “the law” to do to help the stem this troubling tide?
DW: I don’t really think the question is primarily what the law can do. The problem is principally one of education and political action. Political action is an arena in which I can no longer play. I’m appalled by the cowardice of political leaders regarding the issue. The opposition to anti-Semitism shouldn’t be a partisan matter. And the failure of political leaders to call it out is appalling. Jewish leaders, too, are often timid. They should learn the lessons of history.
Elected officials, Jews, faith leaders (who, to their credit, came forward in the wake of the massacre in Squirrel Hill), should speak and work vigorously against anti-Semitism. It’s critical, and history teaches that. I coincidentally heard a radio interview this morning of a freshman congresswoman. She was going on and on about all manner of things, and was finally asked about the recent controversy involving Representative Omar’s statements. And, all of a sudden, this very talkative representative said “No comment.” That’s all she said, several times. I found that appalling. The idea that an elected member of the Congress has no comment on anti-Semitism is beyond the pale. For shame. Remember: This tolerance of anti-Semitism is occurring within the lifetime of Holocaust survivors.
JC: Jews, particularly in America, have, rightly or wrongly, often looked to the courts as their savior when they have faced problems. Can the courts be helpful to right this type of wrong when discriminatory conduct impacts Jews in particular?
DW: American courts always must be open to claims that seek to vindicate individual rights and liberties. Jews thrive when the rule of law is zealously protected. When the rule of law is subverted, when courts are not open to all, when rights and liberties are denied to anyone, the Jews will be targeted and will suffer. History tells us this.
JC: So what could Congress do? What would you have wanted to see the Congress do with Congresswoman Omar?
DW: I think any member who engages in such rhetoric should be disciplined. Period. And I also think that people of all parties should speak to it. In this case, Republican leaders have spoken out firmly, but not so much Democratic leaders. I’m a registered Democrat; I ran and was elected as a Democrat. It’s utterly disgraceful that the Democratic Party is so timid about this. The whole idea that the fight against anti-Semitism could ever depend on one’s party should horrify any American. This should not ever be a partisan issue. It cannot be.
JC: Are you troubled that the resolution passed by the Congress was generic, not directed specifically at Congresswoman Omar?
DW: I wouldn’t call it a resolution. I’d call it an “irresolution.” It basically contained everything but motherhood and apple pie. It was much sound and fury, signifying nothing. It condemned everything and hence nothing. The whole initial purpose of having a resolution was to condemn what Omar had said, and then the majority caucus became too timid about defending the Jewish people and turned it into a generic “anti-prejudice” resolution. Well, this wasn’t about other kinds of prejudice. That’s not what happened. What happened is that a member of Congress engaged in anti-Semitic rhetoric. All prejudice is bad, but this wasn’t about all prejudice. It was about repeated anti-Jewish statements.
JC: Let me turn to something different. A seven-minute documentary was up for an Academy Award this year: A Night at the Garden. It depicted a Bund rally of 22,000 people at the old Madison Square Garden as a then well-known Nazi polemicist addressed the crowd. Most attendees actually made the Nazi salute. An unemployed young Jew rushed the stage. He was promptly beaten up by the Nazi bodyguards. Ultimately, the police arrested him and brought him to court, charging him with disorderly conduct. The presiding judge said, “What did you do there, you could have caused violence?” and he replied simply, “Look at the violence that’s going on now.”
‘I’ve never had to recuse from a case on account of my Jewish identity. I’d be surprised if I’d ever feel compelled to do so. That’s not what America is about.’
Madison Square Garden is three miles from where I am right now. And most New Yorkers, me included, didn’t know about this incident until the documentary was produced. Suppose a neo-Nazi Bund group were to lease today the PPG Arena in Pittsburgh where the Penguins play, probably not too far from where your chambers are. Do you think that kind of thing could happen today, say, in New York, Pittsburgh, Montgomery, Des Moines, or L.A.?
DW: I don’t think it could happen today. I don’t think there’s a critical mass of Nazis right now sufficient to put that event on. But certainly it could happen in the future. And the Nazis might be “ultra-left” wing instead of ultra-right wing. For a time after the Holocaust, the sheer horror and magnitude of the slaughter tended to tamp down the most vocal anti-Semites. But something’s changed both on the right and on the left. People are increasingly willing to voice anti-Semitic sentiments. And when people, particularly leaders, don’t publicly oppose anti-Jewish speech, hatred against Jews festers and grows. And that’s why I think this is a critical time in America.
JC: But what if today a litigant came before a court asking it to restrain, on First Amendment grounds, such a Bund rally? Would the courts be constitutionally able to do anything about it, or not really?
DW: Now you’re asking a question of law. Law and non-law parts of life, as you know, often exist in parallel universes. The fact that something is offensive or hateful doesn’t make it illegal. So if some group or governmental body would seek to enjoin a rally, you’re correct—it’s an area that implicates the First Amendment. While government can put reasonable time, place, and manner restrictions upon the exercise of First Amendment rights, it cannot restrict speech based upon the content of that speech, with limited exceptions such as “true threats.”
JC: I’m somewhat being the devil’s advocate here, but isn’t there something wrong with the courts basically “enabling” hate speech?
DW: By the way, the real devil is anti-Semitism—as was discussed very well in Daniel Goldhagen’s book The Devil That Never Dies—a book that has not gotten enough attention. So you should, indeed, play devil’s advocate here.
JC: That said, maybe the First Amendment needs more restrictions on it, particularly in hard times. That sounds extremely reactionary; but maybe the critical decision-makers in society should rethink whether Skokie, the Bund rally at the Garden, or white supremacist rallies like Charlottesville should be allowed to happen.
DW: I know you’re being a devil’s advocate because I’m pretty sure that you don’t think that.
JC: I do not. But maybe hate speech does cause things like the Squirrel Hill massacre, and now the mosques in Christchurch, New Zealand. Don’t you think it may?
DW: I certainly believe that hate speech helps to breed violence. And that’s why all good people have to speak back forcefully and fight prejudice.
I definitely don’t think we should fool ourselves into thinking the solution is to undo or displace the First Amendment. I want to make that as clear as I possibly can. I feel very strongly about anti-Semitism. That doesn’t mean that we should eliminate or place incursions on the First Amendment. I’m very enthusiastic about the First Amendment. It’s critical that we never in this country give government the power to pick and choose which speech is preferred. The remedy for hate speech is more speech. And of course, we must insist on vigorous and firm law enforcement when that speech crosses the line into true threats or actual violence.
Returning to anti-Semitism, Jews and non-Jews concerned about it should never have to rely on a crutch of government shutting down such speech. That’s a dangerous dependency. Instead, we should powerfully respond with more speech. And we should educate the public about anti-Semitism. And Jews should educate their own children to be proud of being Jewish. They should get themselves and their families involved in the political process. The object isn’t to try to muzzle the speech of those who hate. The object is to show through more speech, through education, and through political action that the views of the haters are not the views of good people.
JC: A sociopath recently killed 50 innocent people in two mosques in Christchurch and was outfitted with a camera on his helmet to capture, in real time, the horror for the entire world. Maybe to inspire would-be copycats. The world saw it only briefly, as social media voluntarily took it down upon request of the authorities. Volunteerism on the part of the media, however, doesn’t always work. Supposing that very thing happened in Pennsylvania, this time at a synagogue. But social media outlets said “no” to law enforcement and allowed the video to be streamed and shared. Are you OK with the First Amendment telling you, a sitting judge asked to do something about, that you were totally out of options? This is far worse than screaming “fire” in a crowded theater. Robes with no power?
DW: It’s never a matter of whether I’m “OK” with what the First Amendment or any other aspect of our Constitution tells me. It’s never a matter of what my “options” are. I’m a judge, not an official of the legislative or executive branches. I interpret and apply the law. I don’t like a lot of what I read about social media (I’m not on it, by the way). If someone makes a true threat on social media, he can and should be prosecuted. But we don’t believe in prior restraint in this country. The Pentagon Papers case tells us that our First Amendment doesn’t permit such measures. That’s a good thing. We don’t want government telling us what we can see and what we can read. Perish the thought. We want a marketplace of ideas. If that marketplace is freely competitive, and if the polity is healthy, the bad ideas will lose. Justice Oliver Wendell Holmes Jr., taught us that in his dissent in the Abrams case. That was a case, remember, that involved the prosecution of peaceful protesters who were Russian Jewish immigrants.
JC: I’m glad you raised the issue of education a moment ago. You’re particularly troubled, I know, by the BDS movement, partly I imagine because you have two children now on college campuses and two more on the way. What can be done through the law or otherwise to address the campus crisis today?
DW: First, the law must deal firmly and forcefully with violence and with threats of violence. Second, university administrators must act and speak vigorously against Jew-haters on their campuses. It’s been very disturbing to see how weak and cowardly many college presidents have been in confronting anti-Semitic events and expressions occurring right under their noses.
And there’s another dimension as well. It’s even more disturbing, because it cuts close to home, because it’s about us.
Part of the campus problem today lies at the feet of Jewish parents for failing to educate their children to be committed, proud Jews. To be Jews who speak up for themselves, who advocate for Jewish interests and who support the U.S.-Israel relationship. If those who hate Jews see that many Jews themselves are ashamed to be Jewish, those haters are only encouraged to express more anti-Semitism, more anti-Zionism. Many of those who attack Israel and express anti-Semitic sentiments on campus are emboldened by the cowardice and the ignorance of Jewish students who are ashamed to be Jewish. That is the fault of the parents of those Jewish students. The university often is an echo chamber in which Israel is demeaned obsessively and fashionably. The remedy is counterspeech, countereducation, counteraction. Too many Jewish students and faculty don’t speak up. They’re intimidated. That’s unacceptable.
JC: We’ve sort of almost been using the concepts of anti-Semitism and anti-Zionism interchangeably. Are they really interchangeable?
DW: Yes, I’m convinced that they are. Anyone who knows Jewish and world history should know that an attack on the Jewish state as a Jewish state is an attack on the Jewish people. Anyone who has ever read the Bible knows you can’t separate it from Eretz Yisrael. When Jews pray, they pray about Zion and the land of Israel. Unfortunately, many Jews today are brought up knowing nothing about Judaism. That’s not to say that Orthodoxy is favored over Conservative or Reform Judaism. I’m certainly not an Orthodox Jew. But every Jew should be brought up with an appreciation of Jewish heritage. Some understanding of our Torah. Some understanding of our history. If every Jew had some sort of Jewish education it would be impossible to grow up without cherishing Eretz Yisrael. It’s central to Jewish heritage and identity—whether you pray to God or not. It’s ironic to think that many people on campus and elsewhere invoke their own Jewish identity to attack the Jewish state. I’m entirely confident that the grandchildren of these people will not be Jews.
JC: Still, when non-Jews on campus are troubled by the treatment of Palestinians by the Israelis you see that as being anti-Semitic—even if they aren’t arguing that Israel shouldn’t exist?
DW: People have an absolute right to criticize any government, including that of Israel. It’s curious, though, that these criticisms are only ever about Israel, and obsessively so. You never see or hear any protests about China or Syria or Sudan, or Hamas torturing Gazans, or massacres in Congo or Yemen or anywhere else in the world. I’m not fooled. Are you?
JC: True, but does that mean that they’re anti-Semites because they criticize Israel over the Palestinian issue but not over these other regimes?
DW: I think that’s one point of proof, yes. When a person or a group compulsively and habitually criticizes only Israel and ignores all of the massive atrocities elsewhere in the world, that’s an indication to me that they’re obsessively focused on Israel and likely anti-Jewish, yes.
JC: The most famous Jewish Supreme Court justice in American history was Louis Brandeis—a committed Zionist. He personally suffered anti-Semitism in his confirmation process, and later when a colleague on the court, Justice James McReynolds, refused to sign opinions authored by or pose in a picture with him. Brandeis was a great believer, of course, in the marketplace of ideas that you essentially spoke of earlier. What would he say or want to do about all this if he were here today?
DW: In 1915, a year before he became a SCOTUS justice, Louis Brandeis said “to be good Americans we must be better Jews, and to be better Jews we must become Zionists.” And it’s important to remember that Brandeis wasn’t an observant Jew. Not even a Jew raised with any sense of immersion in Jewish life. But he confronted much anti-Semitism in his life—you mentioned the disgraceful bigot, Justice McReynolds. Brandeis was opposed in the Senate for nomination and confirmation with anti-Semitic rhetoric concealed under a thin veneer of cleverly elliptical language. For example, some pillars of the American Bar Association opposed Brandeis including, by the way, William Howard Taft, who later became chief justice and later came to admire Brandeis. What would Brandeis say about anti-Semitism today? I have no idea. Remember, intervening between Brandeis’ time and now have been two transformative events—the Holocaust and the birth of the modern State of Israel. These earthquakes complicate any ability I might have to speculate on what Brandeis might think, say, or feel. Giant that he was, I wonder too.
JC: Whether as a justice of the Pennsylvania Supreme Court or not, I hear you saying that we Jews are as much responsible for our plight as it relates to anti-Semitism in that we have a greater duty to stand up for ourselves than we have exhibited thus far in trying to tamp down the growing anti-Semitism here.
DW: No. The levels of responsibility aren’t in equipoise. First and foremost, the responsibility for expressions of anti-Semitism must be laid at the feet of those who make those expressions. And obviously the greatest responsibility rests with those who engage in actual violence, like Robert Bowers, who killed 11 Jews (some of whom I knew personally) in the synagogue where my wife and I were married, in Squirrel Hill, where I grew up.
I don’t believe that there are no distinctions between actions and speech, or that there are no distinctions between different levels of hatred. Or different levels of ignorance. Or inaction. The distinctions are important, in both moral and practical terms. I do believe that Jewish history teaches that we have a responsibility to stand against anti-Semitism, to educate our children, and to not allow the horrors of history to repeat themselves. Emil Fackenheim, the great philosopher, said that, after Auschwitz, there’s a 614th mitzvah, a new commandment: “Jews Shall Not Give Hitler Posthumous Victories.” Every time that a Jew acts like he or she is ashamed to be Jewish, every time that a Jew fails to raise Jewish children, every time that a Jew works against the Jewish state, every time that a Jew makes common cause with Jew-haters, he or she gives Hitler a posthumous victory.
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Joel Cohen is a Senior Counsel at Stroock & Stroock & Lavan LLP in New York. A former prosecutor who is an adjunct professor at Fordham Law School, his essays and columns have been published in the New York Law Journal, The New York Times, Slate, Huffington Post, The Hill and Law & Crime.