Justice Ketanji Brown Jackson may have overplayed her hand when she wrote the dissenting decision in the recent ruling in the Students for Fair Admissions v. Harvard case that dealt a lethal blow to affirmative action.
In order to emphasize the crucial nature of the Supreme Court’s decision to strike down racial preferences in university admissions, she sought to show that race-based admissions are—literally– a matter of life and death for racial minorities. “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die,” Jackson wrote as one example.
In a letter Friday filed to the Supreme Court docket, the global law firm Norton Rose Fulbright wrote that the argument cited by Jackson in her opinion “warrants clarification” and sought to clear up any “confusion.”
The authors of the amicus brief that Jackson based her claim on, filed a correction to the record owning up to a statement in their brief (p.4} that turned out to be flagrantly false: “for high-risk Black newborns, having a Black physician is tantamount to a miracle drug; it more than doubles the likelihood that the baby will live.” This falsehood was quoted verbatim in Justice Jackson’s dissent.
The claim that having a Black physician (a pediatrician in most cases) doubles the chances of survival for Black newborns, though erroneous, was nevertheless not invented out of whole cloth. It is based on a 2020 study of more than 1.8 million Florida births over the years 1992-2015, led by George Mason University business professor Brad Greenwood. The Greenwood et al. study showed that under the care of White physicians, Black newborns experience 430 more fatalities per 100,000 births than White newborns. However, under the care of Black physicians, this “mortality penalty” (as the study termed it) for Black newborns was reduced by 58% (i.e., 257 fewer deaths per 100,000).
At first glance, it might seem like common sense that reducing mortality risk by more than one-half would imply that the corresponding chances of survival would more than double. However, when looked at more closely it became evident that this was a statistical error, and the actual figure should have been a mere 0.26% increase in the likelihood survival, which obviously is quite far from doubling the odds of living for Black newborns.
Norton Rose Fulbright’s letter came after Jackson’s statement in her dissenting opinion caught the attention of several legal experts.
In a Wall Street Journal op-ed this week, Ted Frank, a senior attorney at Hamilton Lincoln Law Institute, responded directly to Jackson’s claim, lambasting the justice for making such a crucial a mathematical error.
“A moment’s thought should be enough to realize that this claim is wildly implausible,” wrote Frank, who filed an amicus brief in support of Students for Fair Admissions. “Imagine if 40% of black newborns died — thousands of dead infants every week. But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%. How could Justice Jackson make such an innumerate mistake?”
The criticism that Jackson received as a result was harsh and the implication was that her misrepresentation of facts was not only inexcusably careless, but had a racially motivated political agenda: “So, we have a Supreme Court justice parroting a mathematically absurd claim coming from an interested party’s mischaracterization of a flawed study. Her opinion then urges ‘all of us’ to ‘do what evidence and experts tell us is required to level the playing field and march forward together.’ Instead, we should watch where we’re going.”
Jonathan Turley, a law professor at George Washington University and Fox News contributor argued that, “the justices are in a poor position to judge the veracity or accuracy of such studies…They simply pick and choose between rivaling studies to claim a definitive factual foundation for an opinion.”
“When you are before the Supreme Court, everyone is free to just dump statistics and studies into the record, and the court regularly uses such material to determine the outcome.
“In this case, critics believe that the Jackson argument literally does not add up.”
At a time when the Supreme Court Justices have come under fire for dubious ethical practices, and for decisions that appear to be increasingly partisan, Jackson’s hasty and careless misrepresentation of facts in writing a dissenting opinion to a Court ruling is not to be taken lightly.
