Crunching the Numbers: Does Justice Jackson’s Dissent on Affirmative Action Add Up?

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.

300 thoughts on “Crunching the Numbers: Does Justice Jackson’s Dissent on Affirmative Action Add Up?”

  1. Ketanji is the kamala of scotus. She is purely an affirmative discrimination hire…and her lack of acumen , let alone common legal sense is zero. It shows. Quoats and filling vacancies with such never ends well. And here we are.

    1. This is the regressive America which Joe and the elites have imagined. A world replete with incompetent and ignorant dupes put in place and managed by the protected class. Our founders eschewed elitism for historical and practical reasons as delineated in the bible and illuminated by the enlightenment thinkers. They were men of pragmatism, vision, and purpose which is wholly incompatible with the new aristocracy. Franklin’s prescient answer at end of the Constitutional Convention foresaw the sickness which has consumed our society today. Ben purportedly responded when asked what form of government the founders agreed upon, “A Republic,” if you can keep it.” By appointing imbicile racists like Ketanji, Sotomayor, and electing communists including AOC, Talib, et al, the Republic will be short lived.

  2. OT


    – Fortune

    Musk is a commie?

    Apparently, Communist China bought Elon Musk with exported American dollars, after it first purchased the world’s 2nd biggest military with exported American dollars?

    The Money Changers may have been too clever by half over the past half century.

  3. Let me see if I have this correct: The woman selected to the supreme court, who cannot define what a woman is (though she be one) now says that black Doctors will treat black people more efficiently than will white doctors. Why? Do black people have gills or something that only black doctors know about? Does this mean I AM A MAN no longer applies? I wish these people would make up their minds.

    1. Plato: Justice Jackson was NOT unable to “define what a woman is”–she declined to answer because this was just bait for future attacks.

      1. Gig
        Thats not what she said. She gave as her defense for being unable to answer as “i am not a biologist”. If she is as smart as you seem to think, she could easily have given an exhaustive and precise answer as to what a woman is according to those who believe that gender isn’t defined by your chromosomes.

        1. No matter what Justice Jackson had said, it would provide fodder for alt-right attacks. So, she answered as she did. And, what did this question have to do with her qualification to be a SCOTUS justice, given that she had been a federal district court and court of appeals judge?

  4. Ketanji has eliminated any argument that she was appointed to the Supreme Court because of her legal acumen. She was FJB’s payment of a politicval debt to appoint a black woman to the Court.

    1. Can you IMAGINE what she was like as a judge?!?! All those terminally frustrated trial participants, wondering who this loon was in charge of the court?!

  5. Question: If America is a society of laws, and those laws are enforced, how were the ancestors of this “woman” ever admitted to become citizens?

    Is an illegal result obtained by illegal activity legal?

    Should she not “recuse” herself from office and invalid “citizenship?”

    How must America perceive and implement the laws in its society?

    Naturalization Acts of 1790, 1795, 1798 and 1802 (four iterations, 73 years precedent, for clarity)

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

      1. Oops!

        1868 – 1863 = 5 Whole Years

        The Naturalization Act of 1802 was in full force and effect on January 1, 1863, requiring the immediate compassionate repatriation of persons who could not be admitted to become citizens.

        14th Amendment was ratified on July 9, 1868 when, by that time, no persons who had been denied admission by extant immigration law, the Naturalization Act of 1802, may have been in the United States of America and must have been deported.

        But that’s just the “law,” right, comrade.

        You, Karl Marx and “Crazy Abe” Lincoln do whatever you like.

        Naturalization Acts of 1790, 1795, 1798 and 1802 (four iterations, 73 years precedent, for clarity)

        United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

        Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

  6. This is the new Orwellian math, 2+2=5. This is the same justice that cannot tell the difference between a man or a woman.

    Matt Walsh (in his documentary, “What is a Woman”) traveled to Africa to ask people of a remote tribe some questions that seem to baffle many (if not most) so called experts in the western culture. They looked puzzled and then began to laugh at the absurdity of those of us in the west who have difficulty defining a man or a woman and they looked especially bewildered when he asked them if they heard about a man becoming a woman or a woman becoming a man.

    For the thousands and thousands of years of human history this was never considered a problem and suddenly in the past 5-10 years a vast swath of people, especially youth are now bewildered and confused. They did not arrive at these thoughts by themselves. They are victims of clever marketing and propaganda on social media.

    His documentary is a must watch.

  7. Turley says: “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.” This statement is at least misleading, because Justice Jackson’s comments appear in a dissent, and the study she cites was NOT used to determine the outcome. Of course, the disciples don’t understand this distinction. All they understand is that Turley says Jackson got her statistics wrong, which, itself, is also untrue.

    1. Prof. Turley has been in front of SCOTUS many times in his career. He is quite familiar with all the practices that are used by all the parties and those who are interested in a case’s outcome. In essence, you, who has quite obviously never practiced before SCOTUS, are basically calling him a liar. People should not state things as facts, that which they know nothing about, and so you are in the same boat as Justice Jackson in that regard.

      1. Jon G, it is your great fortune to, herein, make the acquaintance of NUTCHACHACHA, roving, counterculture, communist bot assigned to the Turley Blog by the allied, surreptitious segments of the communist party in America.

    2. You’ve quoted Turley inaccurately. Go back and read the last sentence of the previous paragraph. He also didn’t say that Jackson got her statistics wrong. However, if you are mathematical literate you’ll understand the point the Wall Street Journal editorial was making.

    3. Evidently the irony escapes her (and half of the electorate), that Ketanji herself is “Exhibit A” of the failure of Affirmative Action and the correctness of this recent decision!

      How does one “double the survival rate” when it is already 99%?

      Instead we received a fumbling, inept and amateurish attempt to deceive with statistics.
      Perhaps she should leave it to the professionals on Capitol Hill . . .

    4. Gigi
      The “outcome” he is referring to is the 6-3 vote in favor of the plaintiff, duh. Which includes the dissent of the dimwit activist justices.
      I am becoming downright entertained by how easy you make it to point out the stupidity in every one of your arguments. And its like u dont even see it coming, cuz u just keep on, lmao.

  8. Ketanji Jackson does not belong on the Supreme Court. Neither does Sotomayor. Watching as justices who are actual ‘consitutional scholars’ with much better clerks, just rip the sh*t out of their dissents will be instructive. And fun to read.

    1. Just as Barry Sotero was a Constitutional Scholar from a Baskin and Robbins ice cream server elevated to freshman Senator then vaulted into the Presidency. He loaded and weaponized the government with his like minded America hating Marxists, and here we are. Affirmative Action IS racism.

      1. You go, boy!

        “Get the hell away from black people.”

        “Black people are a hate group.”

        – Dilbert

          1. Two separate and distinct sentiments from two separate and distinct sources.

            Yer doin’ reeel good on Barry and Baskin-Robbins.

            You go, boy!

  9. Turley says: “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.” However, Justice Jackson’s opinion that he criticizes was NOT used to determine the outcome because it appears in a dissent, so this statement is materially false. AND, Justice Jackson did NOT make up the statistics–she got them from an amicus brief by the AAMC: “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.” Turley cites someone who criticized the study, and even he admits “There, the most highly specified model still shows an improvement in black newborn survival.”. So, according to Turley it is Justice Jackson’s job to analyze or criticize conclusions from published studies. As it turns out, the conclusion is right, even if the details are subject to cricitism. Such studies are supposed to be peer-reviewed before they are published. Justice Jackson’s dissent essentially makes the point that blacks who receive health care from black physicians get better care. She’s not wrong.

    Just another example of Turley’s assignment list: to criticize the minority on the SCOTUS as part of his paid assigment to try to defend the 6 ultra-conservatives.

    1. So, according to Turley it is Justice Jackson’s job to analyze or criticize conclusions from published studies. As it turns out, the conclusion is right, even if the details are subject to cricitism. Such studies are supposed to be peer-reviewed before they are published. Justice Jackson’s dissent essentially makes the point that blacks who receive health care from black physicians get better care. She’s not wrong.

      Everything here is wrong, irrelevent, or out to context.

      You have no idea how little you understand about science submitted to the courts.

      1. Iowan2,
        I generally make it a point to just scroll past Natasha’s comments.
        However, in order to understand your comment to her comment, I read her’s.
        Yeah. “Everything here is wrong, irrelevent, or out to context.

        You have no idea how little you understand about science submitted to the courts.”
        Spot on.

      2. “As it turns out, the conclusion is right,”

        Could you provide evidence to this your assertion please?


    2. Ultra Conservatives? You say that like it is a bad thing. And, they are not actually ‘Ultra Conservatives”. They are Constitutionalists. They actually believe in and defend the US Constitution. Those of us on the right fully get how folks like you truly HATE the Constitution and wish to tear it up. We get how you hat that others who disagree with you have free speech. We get how you agree with religious freedom as long as it isn’t Christianity. We get how you wish to remove guns from the hands of law abiding citizens while knowing the criminals will still have them. We fully get how you think the 4th amendment is only for democrats. We get how you think the 6th amendment is actually being followed when people are locked awaiting trial for 2 years + for a misdemeanor because they are conservative but violent big city criminals get out with far more serious crimes.
      As to the black provider thing.. No. Just no. Using AA to allow unqualified people into medical school is dangerous.

      1. The Constitution is conservative.

        Conservatives are constitutionalists.

        Ergo, actual Americans are conservatives and communists (liberals, progressives, socialists, democrats, RINOs, AINOs) are not, either.

        Well, duuuuuh!!!

        That’s like saying Lincoln was a republican – yeah, before the political pole shift, when republicans were democrats and democrats were republicans.

    3. A nation that allows women to vote and hold public office has already been consigned to homosexuality and destruction. Women ruling over men has always been a sign of Gods judgement, so I’m not sure there’s much point in arguing about it since it will all burn very soon.

      1. The American fertility rate is in a “death spiral” at 1.6, more actual Americans die than are born.

        Where’s the future in having no babies?

        Women are killing babies and women are killing America.

  10. In high school I read, and wrote a review for extra credit, the popular book “How To Lie With Statistics”.
    I am under the impression that it is still in print.

    1. “IPCC Researchers Admit Global Warming Fraud” (Excerpted/Condensed)

      “Global warming alarmists are scrambling to save face after hackers stole hundreds of incriminating e-mails from a British university and published them on the Internet. The messages were pirated from the Climatic Research Unit (CRU) of the University of East Anglia (UEA) and reveal correspondence between British and American researchers engaged in fraudulent reporting of data to favor their own climate change agenda. UEA officials confirmed one of their servers was hacked, and several of the scientists involved admitted the authenticity of the messages, according to the New York Times. The article opined, ‘The evidence pointing to a growing human contribution to global warming is so widely accepted that the hacked material is unlikely to erode the overall argument.’ Climatologist Patrick J. Michaels challenged that position. ‘This is not a smoking gun, this is a mushroom cloud.’ The e-mails implicate scores of researchers, most of whom are associated with the UN’s Intergovernmental Panel on Climate Change (IPCC), an organization many skeptics believe was created exclusively to provide evidence of anthropogenic global warming (AGW). Among the IPCC elite embarrassingly, if not criminally, compromised is Phillip D. Jones, a Ph.D. climatologist at the University of East Anglia whose work figured prominently in the IPCC Third Assessment Report of 2001.”

      – The New American

    2. “How To Lie With Statistics”

      It is still in print. I read it in college for my Stats course, then encouraged my students to read it as well when I was a Stats tutor. In fact, when you started posting on climate change, and your PPM silliness, I could have sworn your comments were excellent examples of how to lie with a stradivarius

      This is pure skill, and a result of hard work. Paganini eat your heart out

      1. estovir…..she’s incredible! I was going to say that I’m a former violinist, but after watching her play, I’m not sure it’s the same instrument!…LOL

      2. If Americans cannot discriminate, Americans may not know that this human being and musician is not only superior but sovereign.

        Of course, Americans may discriminate.

        Of course, this human being and musician is definitively superior and sovereign.


    This is not a Justice, this is a joke, this is the unfortunate result of over half a century of corrupt, antithetical and unconstitutional bias, favoritism and affirmative action.

    This is not a Justice; this is a joke; this is the cataclysmic Frankensteinian result of decades of antithetical, corrupt, and unconstitutional bias, favoritism, and affirmative action.

    This is not health, this is pathology.

    This is not the elevation of America, this is a representation of its decline.

    “Can you provide a definition for the word ‘woman,'” Senator Marsh Blackburn? 

    “I can’t — ” Jackson replied.

    “You can’t?” Blackburn said.

    “Not in this context. I’m not a biologist,” Jackson said.


    woman noun


    (plural women


    [countable] an adult female human

  12. Jonathan: In your haste to criticize Justice Jackson you neglected to discuss an alarming trend by the SC conservative majority–the use of the “shadow docket” to implement the law of the land with little legal explanation (no oral arguments, written decisions, or even recorded votes).

    Nearly 99% of the SC’s decisions during the 2020 term were made on the “shadow” or emergency docket. During the 16 yrs of the Obama and Bush administrations, they asked for emergency relief a total of 8 times. During the Trump administration that number jumped to 41 times and Trump prevailed 28 times. Steve Vladek details this trend in his book “The Show Docket: How the Supreme Court uses stealth rulings to amass power and Undermine the Republic”. Vladek says the ethics scandals inside the Court have dominated the news but the “shadow docket” has become the way the conservative majority can make far-reaching decisions without public comment or knowledge..

    Vladek points to the Sept. 2021 unsigned opinion by the conservative majority not to stop Texas’ 6-week “heartbeat” abortion law–less than a year before the conservative majority overturned Roe v. Wade. Vladek says “The court’s new conservative majority has used obscure procedural orders to shift American jurisprudence definitely to the right”.

    That’s why, along with the continuing ethics scandals of conservative Justices, like Thomas and Alito, the public has lost faith in the legitimacy of the court–now at a historic low of only 30%. That should concern you as a SC watcher. I guess not because you would rather criticize Justice Jackson’s math!

    1. When there was a liberal majority on the SC, did they make use of the “shadow docket”? (Please note, in asking this I’m not trying to be a smart aleck–not being a lawyer, having never heard of a “shadow docket”, and other reading major opinions over the last 25-30 yrs., am not familiar with the “weeds” of the SC, I’m sincerely curious to know if this is something both “sides” use when it’s convenient?)

      1. CK Wallis: I don’t know whether there has ever been a “liberal” majority on the Court. Chief Justice Earl Warren was probably the most “liberal” Justice in recent memory. He retired in 1969 and was replaced by Richard Nixon with Warren Burger, a conservative. Since then Republican presidents have appointed 16 Justices and only 4 by Democratic presidents. A few appointees, Harry Blackmun and David Souter, both appointed by Republican presidents, voted consistently with the liberal wing. But conservatives have dominated. In 2016 Obama nominated Merrick Garland. But GOP Senate Majority leader Mitch McConnell refused to hold hearings on his nomination–allowing Trump to make the appointment of conservative Justice Gorsuch. As pointed out in my comment, the use of the “shadow docket” under the current conservative majority has jumped to 41, compared to only 8 times during the Bush/ Obama administrations. I hope this answers your Q.

    2. The “shadow docket” is a useful tool to check recalcitrant Circuit Courts which engage in “resistance” of binding Supreme Court precedent.

      1. The record shows that this SC has used the shadow docket more than others before.

    3. There are not any ethics scandals. There is only left wing accusations. And go ahead and keep defending the diversity appointee…Jackson.

    4. Ethics scandals like taking $15M in bribes for setting foreign policy as VP? Or ethics scandals for making millions in the market while promulgating law that directly affects the stock price? Or do you mean the creation of a false dossier to destroy a duly elected President?

      Ethics?What would you know of ethics?

  13. What next? from Jackson? Will she find (or adopt falsified info from a Brandeis brief) that 2+2 = 66? If someone who supports her political (vs judicial) position says something … she will blindly follow where that person or entity’s “research” leads her, putting their political stuff into her opinions. SHAME on Jackson. (But no surprise!)

  14. “One and one is two, and two and two is four, and five will get you ten if you know how to work it.”

    -Mae West

      1. Estovir…thank you, dear one! I am doing fine.

        When I was a brand new school teacher in 1969, I taught in a tiny Okla. town. Even though I was the music teacher, if another teacher was absent, they would ask me to fill-in for an hour or so,, regardless of the subject—which was usually reading or geography.
        One day, they needed for me to teach math. Little did they know that when I was a student at Lamar High School, Houston, the teachers in the math department suggested, in concert with one another, that I never darken the door of a math class again because I would only embarrass myself! I was always terrible in math…… but I wanted to keep my teaching job, so I thought I’d fake my way through teaching the math class, somehow, that day in Okla.. The first thing I did, to “break the ice”, because I was nervous, was to recite the above quote of Mae’s, and I did it imitating her voice, with hands on my hips, etc. I was totally “all Mae”. The kids laughed so hard, but when the laughter died down, there was a stern voice booming over the PA system, asking that I come to the Principle’s office immediately! Oops……………… Thus ended my all-too-brief career in stand-up comedy.

        1. Those kids likely never forgot you. I can’t say I remember much from my grammar school days, other than that I could not understand my teachers, and when it came to PTA meetings, my parents did not understand them either! I attended government public schools from grades 1-4, then my parents placed me in Catholic schools, bilingual, due to desegregation bussing.

          I suspect that most kids today in govt public grammar school could not keep up with your math teaching skills.

          Your principal is your “pal”. corny, I know, but it works unless if he were a Jesuit Priest, then you knelt on the floor and waited for the paddling. “spare the rod, spoil the child”

          1. estovir…..LOL….thank you.I’ll bet you got an excellent education at the Catholic schools.
            Our daughter went to Loyola (Univ) in N’Orleans. She enjoyed the Jesuits,and said they were great teachers. She always made the Dean’s list, even though we neither mentioned, nor pressured her about grades. She loved that school…..

          1. mespo…You are so sweet. I’m almost 77 yrs old and just have those problems that go with people my age.
            But my thinking is this: if I were totally healthy, I’d probably get hit by a bus! LOL!
            Hope you and S. are well and happy.

    1. ‘Is that a pistol in your pocket, or are you just happy to see me?’ ~ Mae West

      cc Justice Jackson

  15. See, this is what happens when a white doctor tries to diagnose a patient that is not of his kind.

  16. It isn’t racism or sexism at issue when so many people think that Kamala Harris is an idiot and was only picked because Biden promised the VP would be a WOC, it is the fact that she is unable to do her job. It isn’t racism, sexism or homophobia that causes millions of Americans to think that KJP just can’t do her job, it is the observable proof that she is unable to do her job. It isn’t racism or sexism that many legal experts and other Court watchers think that Justice Jackson isn’t a top level legal mind, it is her writing and lack of depth in her dissents. Of course, just like with Harris, Biden promised to pick a WOC and this is what we got.

    To help make my point that it isn’t racism or sexism at play I give you the example of Condi Rice. Has anyone ever said that she was unqualified for her job? Has there ever been anyone that said she only got it due to her sex and race? No, she was highly qualified and she wasn’t some darn box checker like Harris, KJP and Jackson. Oh, throw Sotomayor in there too. A complete and utter embarrassment to the Court, the country and herself.

    1. Condi Rice’s career is littered with people telling her that she is unqualified. You should read her book.

      By the way, she supported race-based affirmative action because she said that growing up as a black female in Alabama, you had to try twice as hard as white male students.

      1. Which because she said it, is the truth. Try twice as hard?? Why, because she was only given credit for half of her correct answers??? Now you want to try and insinuate that black students have to score higher than white students to achieve the same grades???
        Just stop, already. And the whole “they need it”, is not an argument. It’s the Constitution, stupid.


          “In her five-sentence public statement, Rice, among the highest-ranked African Americans ever to serve in government, wrote, “I agree with the president’s position, which emphasizes the need for diversity and recognizes the continued legacy of racial prejudice, and the need to fight it. The president challenged universities to develop ways to diversify their populations fully. I believe that while race neutral means are preferable, it is appropriate to use race as one factor among others in achieving a diverse student body.”

          Talking to the American Urban Radio Network, Rice said she agreed that affirmative action is needed “if it does not lead to quotas.”

          “My own personal view is that there are circumstances in which it is necessary to use race as a factor among many factors in diversifying a college class,” she told the network “And so I’ve been a supporter of affirmative action that is not quota based and that does not seek to make race the only factor, but that considers race as one of many factors.”

          Rice is not wrong like Justice Jackson

          1. I am not sure I understand your last line, but the rest of it tracks.

            Rice supported the status quo on affirmative action. The majority did not retain the status quo but rather obliterated it altogether. Unless she has recently spoke on this topic, my assumption is that she would rather retain affirmative action to promote a diverse student body (aka Powell’s rationale in Bakke). Bakke is effectively dead as a result of this case.

            1. my assumption is that she would rather retain affirmative action to promote a diverse student body,

              There is no exception for diversity, allowing discrimination on Race, in the Constitution.

              But the radicals often voice their opposition to the Constitution.

          2. She has an opinion, just like Jackson. What she doesn’t have is a basis in the Constitution. Period.

          3. We do need “diversity” in colleges. We need diverse political views of members of the faculty, rather than the the monopoly of left-wingers in many colleges. Students do not learn from seeing people of various races. The physical characteristics of a race are obvious long before we get to college, and tell us nothing important. Students learn their subject matters by hearing from scholars steeped in knowledge, having carefully thought-out ideas about the subject matter, and dedicated to the truth. If scholars fitting this description are hired by colleges, then there will inevitably have real “diversity” because thinking people often end up with different views of history, philosopy, economics, et al. Their differences stimulate our own thought.

            1. Precisely, Edward Mahl! What has been lacking for far too long is diversity of thought. There has been little tolerance of that.

    2. hullbobby: where’s proof that Kamala Harris “is an idiot”? What errors has she made? I want specific examples. Where’s proof that “she is unable to do her job”? What, exactly, is the “job” she is “unable to do”? You say there’s “observable proof’–what is it? You don’t get a free pass to engage in patently racist and misogynistic attacks on someone as accompllished as VP Harris because you are repeating the slop you heard on alt-right media. She was a District Attorney, Attorney General and Senator before she became VP.

      1. Let’s start by imagining Kammy the Giggler as Commander in Chief.
        No one would, nor should, feel at all at ease with someone like Kamala going head to head with military commanders. She is OUT of her league as VP. Without question she would be OUT of her league and extremely dangerous as POTUS. The world knows this – and fears this.

        “It’s the most dangerous thing to have a weak person feel like they need to project strength and have the U.S. military at their fingertips to do that…”

        1. yep and we are watching right now as a weak, compromised, corrupt POTUS Biden –and his completely incompetent national security team– are preparing to send cluster bombs to Ukraine. what a humanitarian disaster….

          as RFK Jr. put it: “Cluster bombs are munitions so horrific for civilians that more than a hundred nations have signed an international treaty banning them. Now the Biden administration is preparing to send them to Ukraine.”

          1. Well, this allegedly “weak, compromised and corrupt” President Biden: 1. got more bills passed in 2 years than Trump did in 4; these include: Infrastructure Act that will create thousands of good-paying jobs to build roads, airports and bridges; Inflation Reduction Act–insulin capped at $35/ month; COVID Relief Act; Veterans Act; Debt Ceiling Act, among others. 2. mended fractured relations with our EU and NATO allies; Finland has applied to join NATO; your hero would have pulled the US out of NATO because Comrade Putin would command him to do so; 3. turned around the worst economy since the great Depression, brought about by Trump; among his failures: driving the national debt to a record level due to tax breaks mostly benefitting his wealthy donors; 4. Got COVID under control–schools, businesses and restaurans are open once again; 5. brought unemployment down to a 50-year low; 6. month after month lowered inflation; real wages are going up. Inflation due in part to Trump’s trade war with China and the tariffs he imposed that resulted in shortages of consumer goods and computer chips.

            The cluster bombs we are sending are those who have limited capacity to spread out and cause potential injury to civilians. And, Ukraine will monitor for the presence of unexploded ordinance, to prevent injury to civilians. The Ukrainians didn’t pick this fight, and have asked for the bombs. Anything…anything…to criticize Biden, who, by any OBJECTIVE measure is a much better leader than Trump, who is incompetent when it comes to micro and macro economics, international relations, domestic relations, and anything else that doesn’t involve attention and adulation for him, which his ego requires due to his narcissism.

            1. Gigi,
              Since this rant is so chock full of outright lies, disinfo and misinfo, i will demonstrate the voracity of my claim by asking one question. If orange man policies so bad and hair sniffer doing so great, why does 75 f~ing percent of the country think we are headed in the wrong direction?? 75%!!! 75% havent agreed on anything since hitler. Apparently, 8 year old breast grabbing joe has a similar approval rating.

      2. Have you never heard VP Harris speak?
        She begins by giggling hysterically.
        She is absurdly incoherent.
        It doesn’t matter how much speech writing, coaching and feedback she gets, she keeps doing it.
        She seems to have little to no self control.
        Or she is medicated or on drugs.

        1. The memes about her are funny because they are based in reality. She head bobs and tries to appear intelligent. She mostly gets a free pass because she is a woman and has some extra melanin

        2. Nothing you say is true–nothing. VP Harris is obviously bright, and articulate, as opposed to your hero who endlessly engages in grievances and lies about his vainglorious “victory” being “stolen”.

          1. “lies about his vainglorious “victory” being “stolen”.”

            Says the useful idiot who just claimed Trump cheated to get elected.

            1. So says a REPUBLICAN Senate Commitee that investigated how Russia helped Trump cheat. So says Dan Coats, head of US intelligence agencies. It’s the only way he could get the presidency.

      3. Umm, Harris has done a good job at any of those positions. She rose to her position based on AA and her ability to do special favors for a black mayor.

      4. Just listen to her try to express a thought. It’s painful. And she doesn’t HAVE a job. Everything plugs’ handlers have supposedly tried to get her to do, she ignores.

      5. Gigi, I will offer up the border as an example of Harris being totally incompetent. She is the border czar, the border is a disaster. End of discussion.

  17. Reasoning doesn’t figure much in lie think.
    Driving lies into the minds of the masses has no limiting factor when ready self deception is so very common.

  18. Professor Turley,

    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.

    The more important issue here is that the prevalence of Brandeis amicus briefs underscores why we need to update conflict disclosure rules to include amicus briefs. If they have an outsized role in influencing a Justice’s opinion, then disclosure of conflicts should be required.

    1. “So the whole argument is attacking an argument that she never made” It does not matter to Turley or the Cult 45 crowd. It is to keep the rage up with the deplorables’.

    2. @Anon…

      Its still meaningless hogwash.

      What Jackson is doing is promoting a racial stereotype.

      That people tend to trust people who look and sound like them. Aka members of the same community.

      This has no outcome on the type and quality of treatment.

      What they are saying is that a patient is more likely going to listen and do what the doctor says if they can relate to the doctor. That black man would trust a black man over that of someone of a different racial background. You can substitute any race and get the same result. There is some truth to that.
      (Psychology 101)

      But when you say that a black man knows how to gauge a black patient’s pain better than a white or asian doctor (anyone one other than black) then you’re wrong.
      Gauging the patient’s response comes with experience.

      A good example is when a doctor asks a patient how much do they drink a day. A patient may give an answer. The doctor will adjust that response based on the patient’s appearance and body language.

      But this has nothing to do with the skin color of the doctor.


      1. I don’t follow.

        There are numerous studies that show mortality rates drop when a physician and his/her patient have a similar racial background. There are other studies that show (a) that there are clear differences in the treatment received by minority patients and white patients; and (b) that patients with race-matched physicians have better communication with their physician and higher satisfaction in their encounters.

        Are you claiming that the studies showing increased communication are not accurate? These outcomes are unsurprising. Of course, if a black patient grows up in an area with significant racism, it is not unreasonable to feel uncomfortable speaking with a white doctor about sensitive topics like health.

        To respond to your example, doctors are not all similarly able to “adjust” patient responses. Communication is key, and shared cultural backgrounds often increase the likelihood of strong communication. Of course, no one is suggesting that these studies mean that a black patient will always have a better experience with a black doctor. Nor does this mean that a white doctor is incapable of treating a black patient. These studies look at statistics to show trends, rather than outcome determinative predictions. This is not a unique phenomenon to the medical field. This is true in other professional fields as well.

        1. Anon
          And what, among those unproven assertions by you, is the basis for unconstitutional discrimination. Equal rights provisions in the constitution say “….on the basis of race…”, not “on the basis of being black”. Like it, dont like it, it really doesnt matter judicially. There is a new sheriff in town, and for at least the next 20 to 30 years, it will take an amendment to change the constitution. Shouldnt be too hard with your “vast majority” of Americans. Best get busy.

          U know why multiple dem regimes (house senate and wh) never codified roe v wade or came up with “real immigration reform”? Because they dont give a sh!t about those issues, except to use them as political tools. Case in point, they continue to try to use abortion rights as a litmus for electing federal reps. The issue is decided on the federal level. A done deal. Nothing any us congress person or president can do about it. Period. Its a states issue now. Congress has the power specifically granted by the constitution and no other power. Period. And the new sheriff will make certain of that for some time to come. Deal with it.

    3. ANON yep, and abortion is saving black babies also, huh? The pendulum has swung big, and upon return, it will be dystopian.

    4. Blah Blah Blah. It’s the Constitution, stupid. The rest is NOISE.

      However, her argument does point to her gross ignorance. She actually argues that black doctors are more likely to prescribe pain meds to black patients than white doctors, and so we need affirmative action (despite it’s unconstitutionality).

    5. If having a black doctor regardless of credentials or academic performance matters to the medical outcomes of black patients, we should issue black doctors who don’t merit acceptance to medical schools without race preferences or who can’t satisfactorily complete the course of study in medical school after acceptance a “Black Doctor’s License.” The “Black Doctor’s License” would entitle the holder thereof of to practice medicine, but only and exclusively with black patients. That sounds like a win-win to me, and I assume, Justice Jackson (whooo! I am for reaal!).

    6. 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.

      Help me out here. How does her contention reference the Constitution? Where does the Constitution make an exception for a statistical determination. Congress (the People) can make all manner of value judgements writing legislation. Justice Jackson is limited to the direction of the Constitution.

      (And you are wrong on your attempt to defend her. She has the math wrong.)

      1. I am not sure I understand your question. Court’s have used statistics to inform their decision for more than a century. This is especially true when heightened or strict scrutiny is involved. Many constitutional issues require judges to weigh factors in a balancing test to justify a “compelling government interest.” The use of statistics is most useful when the court is tasked with such a test.

        This is not something that only progressive judges do, either. Alliance for Hippocratic Medicine v. FDA, for example, cites research based on anonymous blog posts, cherry picks statistics that exaggerates the negative physical and psychological effects of mifepristone, and ignores hundreds of studies attesting to the medication’s safety.

        Did you support that approach, which was used to justify both standing and the substantive outcome? Were you concerned about whether that Judge’s use of statistics was sufficiently rooted in the Constitution?

    7. doubling of the “likelihood” of survival

      Yesterday “likey” in a judges decision meant the judge knew nothing.
      Today ‘likelihood” is sign of great intellect.

  19. Numbers might matter in a debate over policy. In a debate over the Constitution, what matters is the Constitution, which clearly prohibits racial discrimination.

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