The last week’s historic decisions from the Supreme Court led to an array of factual objections from critics. In Justice Neil Gorsuch’s major free speech ruling in 303 Creative LLC v. Elenis, a man who believes that he is “Stewart” referenced in the case (as asking for a website for a same sex marriage) never made such a contact with the company. In Justice Sotomayor’s dissent to that case, the justice falsely claims that the Pulse mass shooting (“the second-deadliest mass shooting in U.S. history”) was an intended anti-LGBT attack. (The shooter apparently was unaware of what type of nightclub it was). Those mistakes, however, had little impact on the reasoning. That is not the case with a mathematical challenge raised to the dissent of Justice Ketanji Brown Jackson in the North Carolina affirmative action case.
In a Wall Street Journal column, lawyer Ted Frank objects to what he argues is a “mathematically absurd claim” about black newborns in Jackson’s dissent. Jackson was arguing that affirmative action has been shown to “save lives” by allowing black doctors to give better care for black people than white doctors.
“It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
Frank objected:
“A moment’s thought should be enough to realize that this claim is wildly implausible. 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%.”
The claim is based on a 2020 study cited in a footnote, which Justice Jackson appears to have taken from an amicus brief by the Association of American Medical Colleges. However, Frank again objects that the study is not only “flawed” but does not make that claim:
“The study makes no such claims. It examines mortality rates in Florida newborns between 1992 and 2015 and shows a 0.13% to 0.2% improvement in survival rates for black newborns with black pediatricians (though no statistically significant improvement for black obstetricians).”
Frank says that “the AAMC brief either misunderstood the paper or invented the statistic.” He also notes that the study is flawed by relying on a linear regression given the small differential of 10 newborns a year. Instead, he claims that study did the accepted logistic model analysis in such cases but put the results in an appendix:
“There, the most highly specified model still shows an improvement in black newborn survival. But if you know how to read the numbers—the authors don’t say it—it also shows black doctors with a statistically significant higher mortality rate for white newborns, and a higher mortality rate overall, all else being equal.”
I cannot claim any particular skill at “reading the numbers.” However, this controversy captured my attention because I have always been leery of so-called “Brandeis briefs” before the Supreme Court where amici dump studies into the record.
Before joining the court, Justice Louis Brandeis filed such a brief in his brilliant challenge to work place conditions. It is now a common feature in briefing of cases as groups and associations push studies as determinative or substantial evidence on one side or another. My opposition to the brief is 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.
It is also frustrating that, as a litigator, you fight over every entry into the record at trial. However, 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. It produces more of a legislative environment for the court as different parties insert data to support their own view of what is a better policy or more serious social problem. There is only a limited ability of parties to challenge such data given limits on time and space in briefing.
The result is that major decisions or dissents can be built on highly contested factual assertions. In this case, critics believe that the Jackson argument literally does not add up.
What is a number, I am not a mathematician.
damn, that’s a good one.
As much as the Left berated, lynched and demeaned Justice Clarence Thomas, Kentaji will never live down her idiocy as to her claim of not being a biologist. Her opinions should be treated with scorn and ridicule on every SCOTUS dissent
As for Justice Jackson and her clerks, it’s surprising they don’t have a better spidy-sense. The claim that black babies have double the survival rate with black doctors is so outlandish that, if I were her clerk, I would have said it can’t be true, and for the sake of your reputation let’s look into that and see what’s wrong with that claim before including it in a published opinion. Either her clerks didn’t do that, or she overrode them. Either possibility is kind of pathetic.
As for Justice Jackson and her clerks, it’s surprising they don’t have a better spidy-sense
I learned from a lawyer long ago when he prepped me for a deposition. NEVER use numbers in your answer. They are concrete, unambigous, and cannot be altered by and ‘explaination. ‘ Never use a number, unless it is a number you have doubled check to be true. If the question uses a number, clarify that is their number and NOT your testimony. Numbers cannot be misinterpreted.
If were a judge and wanted to make the claim she was making, I would have told my clerks, to drill down on the claim and be positve the numbers PROVE my claim.
I truly educated person understands their own shortcomings.
From “Anonymous” : “Frank misrepresents Justice Jackson’s contention. She never stated that the survival rate doubled. The quote refers to a doubling of the “likelihood” of survival, which are not the same thing. For a hit piece, which makes a largely unimportant distinction – clearly, Jackson meant the mortality rate, not the survival rate – he can’t even find a single place where Jackson references the survival rate. So the whole argument is attacking an argument that she never made.
Further, the piece does not acknowledge that the rationale behind Justice Jackson’s argument is still a valid one, namely that having black doctors yields measurable results for black babies.”
It’s not true, but it’s true. Someone with Jackson’s intellectual and moral formation is going to believe or misinterpret anything supportive of that worldview. And in a sense there is no downside since the only places you’ll read about such blunders are in rather obscure outlets and we all know that the Washington Post or New York Times certainly isn’t going to do that digging.
My opposition to the brief is 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 . . . and the Court regularly uses such material to determine the outcome.
Money can buy research to say whatever the purchaser wants. So there will usually be at least a few studies out there for any side of a particular case. Those are the ones that will be included in the brief, even if they are refuted by 99% of the other studies. But judges have no way to know that they are refuted.
That’s why, as Mark says below, judges shouldn’t use them as a basis for decision. Instead, judges should only rely on expert testimony about the science, where there’s a chance for cross-examination, and only if it has been put through a Daubert hearing (or a Frye hearing if in state court in a Frye jurisdiction).
I wasn’t aware SCOTUS based decisions on such studies, although I know Brown v. Board of Education did, and was criticized for doing so once it was shown the studies were methodologically flawed.
I believe that Justice Brown Jackson feels that her primary role on the Supreme Court is to advance social justice issues (as she defines them), not the law really. That’s secondary really. Thank you, Jonathan, for an excellent article.
Justice Jackson is an illiterate partisan hack in terms of her ability to serve as a Supreme Court Justice. Not her fault that she was chosen for the role though.
Yeah, but she’s on the SCOTUS and you’re not. Haha!
“Haha! Caligula’s Horse is Consul and you’re not! Neener Neener!”
Everyone knows the blacks of Africa are leading the world in healthy outcomes…right?
Assume that Justice Jackson’s analysis is correct (even though it is not). If black babies do better with black doctors than they do with white doctors, does it not follow logically that white babies would do better with white doctors than black doctors? Is Jackson arguing that segregation in health care provides the best care? And, I wonder in Jackson’s mind where this leaves the poor transsexual doctor. Should he/she/it confine his/her/its practice to men that have babies?
I think she’s saying black doctors are better doctors because of their skin pigmentation.
Since black doctors are superior to doctors of other races, then we should only allow black people to become doctors.
She JUST proved that Affirmative Action doesn’t WORK
The idea she graduated at the top of her class…is a JOKE
12% and a Marxist. Why so suprised?
Truth matters; true, complete and accurate truth.
Justice Jackson is not qualified to be on the Supreme Court – she still cannot define a “Women” refer to the Senate hearing to her answer. We have more qualified Justices be it a Dem or Republican who are more qualified than her. Another BIDEN wining appointment?????
” Justice Jackson: “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
Frank objected:
“A moment’s thought should be enough to realize that this claim is wildly implausible. 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%.”
********************************
Funny, I don’t see this passage as an indictment against amicus briefs but rather a not-so-startling, if unintended, sobering consequence of the unconstitutional evil of nonmeritorius elevation that the “Students for Fair Admission” decision seeks to alleviate. Jackson was admittedly chosen by Biden specifically because of her race and gender – an avowedly unconstitutional practice as JT pointed out when she was nominated:
“𝙏𝙝𝙖𝙩 𝙙𝙚𝙘𝙞𝙨𝙞𝙤𝙣 𝙛𝙤𝙡𝙡𝙤𝙬𝙨 𝘽𝙞𝙙𝙚𝙣’𝙨 𝙪𝙣𝙣𝙚𝙘𝙚𝙨𝙨𝙖𝙧𝙮, 𝙪𝙣𝙥𝙧𝙚𝙘𝙚𝙙𝙚𝙣𝙩𝙚𝙙 𝙥𝙡𝙚𝙙𝙜𝙚 𝙩𝙤 𝙘𝙤𝙣𝙨𝙞𝙙𝙚𝙧 𝙤𝙣𝙡𝙮 𝘽𝙡𝙖𝙘𝙠 𝙛𝙚𝙢𝙖𝙡𝙚𝙨 𝙛𝙤𝙧 𝙖 𝙫𝙖𝙘𝙖𝙣𝙘𝙮 𝙤𝙣 𝙩𝙝𝙚 𝙘𝙤𝙪𝙧𝙩 — 𝙩𝙝𝙚 𝙫𝙚𝙧𝙮 𝙩𝙮𝙥𝙚 𝙤𝙛 𝙩𝙝𝙧𝙚𝙨𝙝𝙤𝙡𝙙 𝙘𝙧𝙞𝙩𝙚𝙧𝙞𝙖 𝙩𝙝𝙖𝙩 𝙩𝙝𝙚 𝙘𝙤𝙪𝙧𝙩 𝙝𝙖𝙨 𝙙𝙚𝙘𝙡𝙖𝙧𝙚𝙙 𝙪𝙣𝙘𝙤𝙣𝙨𝙩𝙞𝙩𝙪𝙩𝙞𝙤𝙣𝙖𝙡 𝙤𝙧 𝙪𝙣𝙡𝙖𝙬𝙛𝙪𝙡 𝙛𝙤𝙧 𝙨𝙘𝙝𝙤𝙤𝙡𝙨 𝙤𝙧 𝙗𝙪𝙨𝙞𝙣𝙚𝙨𝙨𝙚𝙨.”*
Why should we be surprised when the one chosen for primarily for her immutable characteristics turns out to be the inadvertent posterchild against affirmative action?
*https://jonathanturley.org/2022/02/28/wink-and-a-nod-nomination-who-really-is-ketanji-brown-jackson/
Mark my words, if the Democrats win in 2024 the next Supreme Court justice will be a transgender
@anonymous,
“If they win”? Mark these words: unless the GOP returns to elections of integrity, voter ID, election DAY, mail in ballot elimination, it won’t matter who their opponent is you’ll have 4 more years of ObaBiden.
Mespo, your comment was perfect. The internal hypocrisy of having a president declare that he will only nominate a woman of color having to decide, in her first term, a Constitution based race case regarding universities picking students based on race and then having the AA appointee voting that such selection process is legal is a great example of leftist jurisprudence. It isn’t based on the Constitution, law or merit, it is based only on what the leftists want.
Sotomayor, Kagan and Jackson are embarrassments the country will have to live with. They will always be reminders of the “diversity” vs. “merit’ debate, and living proof that “diversity” fails.
Oh come now, Gio! “Diversity is our strength and inclusion our goal” as all the colleges tell us … er … preach to us. Look at all the good that jettisoning excellence and exclusivity has wrought:
No…they can BE IMPEACHED off the court.
Re Brandeis briefs in general, Justices should abide by Daubert rules as they require lower federal courts to do.
That’s right. Supreme Court justices, as well as lower federal court judges, have no expertise in the scientific subject involved.
Conservatives have some crazy rulings also.
Like “Citizens United” ruling, which is contrary to the “Originalist” view Conservatives claim to support. Apparently the Founding Fathers didn’t create the Bill of Rights to counter the abuses of King George III of England – to restrain governing authority to protect citizens. The Founding Fathers apparently were talking about non-human persons “corporate persons”. Never read that in our high school history books.
What about Republican icon Ronald Reagan’s Torture Treaty? The U.S. Supreme Court allowed Guantanamo Bay to be built in order to circumvent constitutional law and federal law. 20 years later Gitmo is still open. We have 20 years of blacklisting innocent people. The high court allows it.
Americans of both parties have lost faith in many of our government institutions – that’s bad for all Americans!
Based on your view of the First Amendment, Donald Trump could have installed Don Jr. as editor of the New York Times because, as a corporation, the Times has no First Amendment rights.
They just assume without stating so that the legacy Press institutions which they control have super-rights or something. If a couple of guys organize as a company to print political pamphlets in the garage of one of them the government can enjoin publication but somehow the New York Times is different because reasons. If I recall, a few lefty Democratic Senators a few years ago toyed with the notion of government credentialing of the Press, aimed at denying Fox News et al. that same credential as a means to marginalizing it.
KBJ has spent her life being indoctrinated (ie filled with lies) . But as our host points out, herlegal intelligence is wanting. She is a statistic all her self, arguing for the elimination of AA
Let’s just say it. 90%+ of the population does not do statistics. The old adage is true. “there are lies, damn lies, and Statistics.
There are other concerns about Jackson as well….some unfair and perhaps untrue….but one thing for sure about her being nominated to the Bench is the primary requirements for that nomination as announced by President Biden is his nominee would be a Black Woman with ability being secondary as a result. That the Justice could not define the word “Woman” during her Confirmation Hearing and was confirmed despite that is something that plainly does not add up.
In Justice Sotomayor we were advised that as a sage Hispanic Woman she would have the added value of being a Hispanic Woman with the unique world view that offers.
Identity politics, just as Affirmative Action itself, does not always lead to the best outcome when it comes to very serious endeavors that demand the best and brightest from all of society be selected without favor, bias, or limiting the scope of candidates.
The Supreme Court Justices must be those “best and brightest” and have the ability to see through all of the various arguments and settle upon the issues at hand in the various Cases that come before the Court and do so without bias or favor.
Sadly, we are confronted with a situation where some who have benefited from Identity Politics (a form of Affirmative Action) are refusing to recuse themselves from Cases in which they have a clear conflict of interest.
What is worse is that it is one thing to see issues differently. but to use false information as a basis for one’s decision is inexcusable and telling of the intellectual capability of those who just plain got it wrong from the start.
Sotomayor and Jackson cannot be proclaimed as being stellar picks by Obama and Biden but more importantly the Senate that confirmed them both should have been better at ensuring the best candidates possible were nominated and confirmed.
Skin Color and plumbing should not be the primary consideration…..knowledge, education, proven judicial ability, and attention to the Constitution and Federal Law and the legal process should be what determines advancement to the Bench of the Supreme Court.
I’m not surprised given that Jackson said she’s not qualified to know what a woman is.
“There are three kinds of lies: lies, damned lies, and statistics.”
“Justice Ketanji Brown Jackson joined the dissent in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, in which the Court ruled that race-conscious admissions policies violate the Equal Protection Clause of the 14th Amendment. She cited an Association of American Medical Colleges study that argues for the “critical importance of diversity in the medical profession.” Affirmative action, Jackson claimed, doubles the chance of black infant survival: “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
“The study, however, finds that black infants have a 99.6 percent survival rate with black doctors and a 99.8 percent survival rate with white doctors. What Jackson misinterpreted when she claimed that the black infant survival rate “doubles” with a black doctor is the discrepancy that more white doctors are in Neonatal intensive care units (NICU), where babies are less likely to survive. If a black baby has a black doctor, it’s likely because that baby is not in a NICU, which of course yields higher survival rates.”
https://www.nationalreview.com/news/fact-check-liberal-supreme-court-justices-rely-on-false-claims-about-racism-anti-gay-bigotry-to-bolster-dissents/
Jackson misstated the results of a study that itself was deeply flawed, according to a number of critics. Among other things it failed to control for the seriousness of the newborn’s difficulties, and so didn’t consider whether the newborns were in intensive care units or not. In those units, specialists, a higher proportion of whom are white, are likely to be involved. So if a higher proportion of black newborns face serious difficulties and are more likely to be treated by white doctors, this could account for the very small difference in outcomes.
NO, she didn’t: From “Anonymous”: “Frank misrepresents Justice Jackson’s contention. She never stated that the survival rate doubled. The quote refers to a doubling of the “likelihood” of survival, which are not the same thing. For a hit piece, which makes a largely unimportant distinction – clearly, Jackson meant the mortality rate, not the survival rate – he can’t even find a single place where Jackson references the survival rate. So the whole argument is attacking an argument that she never made.
Further, the piece does not acknowledge that the rationale behind Justice Jackson’s argument is still a valid one, namely that having black doctors yields measurable results for black babies.”
Gig
Even if that were true…so what???
So what???
It’s the constitution, stupid.
And exactly what are you and jackson implying? That without AA, we will have fewer or no black doctors???? Ouch. The soft bigotry of low expectations.
Then one must assume based on that, that without AA, we would have one less black supreme court justice and one less black vice president. What a shame.
My question is, why do the libs always tend to elevate the least impressive examples of racial minority options? Is it just to prove a point??