Rarely, if ever, has a sitting American judge spoken out publicly on the threat of anti-Semitism in America. 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 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.
Wecht grew up in Squirrel Hill. He and his wife were married at the Tree of Life Synagogue.
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 Wecht: I’ve always been firm in my Jewish identity. That hasn’t changed. What’s changed, I think, is a tolerance for anti-Semitism here in America. 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.
JC: 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: 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 another 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.
JC: Assume you weren’t restricted by the ethical constraints regarding what a judge can do. How would you change society to address rising anti-Semitism? What would you want “the law” to do to help 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 Rep. 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.”
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?
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? Maybe the First Amendment needs more restrictions on it, particularly in hard times.
DW: I definitely don’t think we should fool ourselves into thinking the solution is to undo or displace 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.
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. 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: You’re particularly troubled, I know, by the BDS movement. What can be done 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.
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.
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 the gunman 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. 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. PJC
Joel Cohen is a senior counsel at Stroock & Stroock & Lavan LLP in New York. This piece originally appeared in Tablet Magazine.