We previously discussed how Justice Ketanji Brown Jackson included a false claim to support her dissent in the Court’s recent opinion barring racial discrimination in college admissions. Now, the justice is accused of a second false claim derived from the same source: the amicus brief of the Association of American Medical Colleges (AAMC). Notably, however, the media is still citing the first error as proof that race-blind admissions will kill Black citizens.
In her prior error, Jackson claimed 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.”
Experts immediately objected that the claim was wildly off base. AAMC later asked the Court to correct the claim, though many objected that it still did not fully address the scope of the false claim. Ted Frank who previously noted that the study itself was flawed in relying on a linear regression given the small group analysis. He responded to the correction on Twitter by noting:
“The particular specification the authors and AAMC highlight fails to account for the fact that black doctors are much less likely to be neonatologists, who get the higher risk cases. The number is much smaller when there’s a partial attempt to control for this. And, as the op-ed noted, the logit model hidden in the back of the appendix found that black doctors had a higher mortality rate overall. The study is not grounds for racial discrimination, and the paper doesn’t dare to claim that skin color saves lives.”
I will leave these details to those with a better statistical handle on these studies. However, even after AAMC corrected or “clarified” its error, the media is still citing the original claim.
In Time, senior correspondent Janelle Ross recently wrote a piece on how the ban on racial discrimination in admissions would kill Black citizens: “I write this with no hyperbole intended. Some of us are probably going to die.” She then cites Jackson’s claim that “for high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.” This is part of what Ross insists is an effort to get “away from the ecosphere where alarmist conservative information outlets assign continued white dominance oxygen-like importance.”
Ross then cited the second claim as dispositive proof that race blindness will kill blacks. In her dissent to Students for Fair Admissions, Jackson wrote, “research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly.” This included “prescribing them appropriate amounts of pain medication.”
However, critics object that none of the four studies cited by AAMC support that claim. They reportedly explore problems of Black patients in dealing with pain management, but do not examine the relative efficacy of doctors of different races. They further note that AAMC has pushed DEI policies, including the use of race in faculty appointments and admissions to medical schools. These claims are used to justify the use of race as a criterion.
A review of the studies seems to confirm the objections. For example, the first study cited was Kelly M. Hoffman et al., Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs about Biological Differences Between Blacks and Whites, 113 Proc. Nat’l Acad. Scis. 4296, 4298-30 (2016). However, that study focused on how “false beliefs” can impact the community, though it did find that half of a sample of white medical students and residents endorsed some of these false beliefs.
The second study is Monika K. Goyal et al., Racial Disparities in Pain Management of Children with Appendicitis in Emergency Departments, 169 JAMA Pediatr. 996, 998-999 (2015). However, that study deals with racial disparities in use of analgesia in emergency departments and does not focus on the race of the doctors.
The third study is Karn O. Anderson et al., Racial and Ethnic Disparities in Pain: Causes and Consequences of Unequal Care, 10 J. Pain 1187, 1198 (2009). This study, however, is a review of recent literature on racial and ethnic disparities in pain on reducing and eliminating disparities in pain. Again, the focus is on the treatment levels, not the race of the treating physicians.
The final study is C.S. Cleeland et al., Pain and Treatment of Pain in Minority Patients With Cancer, Eastern Cooperative Oncology Group Minority Outpatient Pain Study, 127 Annals Intern. Med. 813, 815 (1997). Again, the study focuses on the continued failure to offer adequate pain control and suggested new approaches to the control of cancer-related pain in this patient population.
As shown by these studies, there are obviously serious concerns over the health care for the Black community with higher rates of mortality in some areas and concerns over access to medical treatment. However, these statistical claims are being offered as evidence that the race of doctors is driving some of these differences. The selective use of such studies can often play to confirmation bias in crafting opinions.
For academics, even raising exaggerated or false claims can be perilous. Most professors do not want to be tagged in a cancel campaign or declared hostile to diversity. Conversely, the United States Court of Appeals for the Fourth Circuit recently allowed North Carolina State University to move to fire a professor as “uncollegial” in his criticism of diversity policies. The opinion by Judge Stephanie Thacker will hopefully be reviewed by the full court or the Supreme Court because it could gut not just protections of free speech, but academic freedom.
Sweeping claims of systemic racism are often made with little scrutiny in law schools and other departments. The risks are simply too high in the current environment. There is a new orthodoxy that has taken hold of higher education and the media with little tolerance for opposing views.
What is striking is that these errors are coming from the largest organization representing medical schools. As I discussed earlier, it is another example of the perils of so-called “Brandeis briefs” 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 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. Clearly, Justice Jackson would have still maintained her defense of race-based criteria in admissions even without such statistical evidence. Moreover, she is not the only justice to make contested claims in recent opinions. However, it is also indicative of how these dubious statistical claims can be used to justify or challenge major legal doctrines.
Actually GEB’s suggestion is better than mine.
It seems to me a possible violation of due process for studies to be put before the court without an expert who stands behind them being available for cross-examination. This goes for historical studies as well as scientific ones.
Most “observational” scientific studies are plagued by unrecognised bias or confounding effects that only experienced analysts can discern. The plethora of weak observational studies about Covid, for example on the efficacy of masking, should give one pause. Vinay Prasad, Tracy Hoeg and others have made names for themselves in picking apart these flawed studies, many of which were touted by the CDC. Prasad also did that for the neonatal mortality study Jackson cited when it was first published.
We are witnessing in many areas the misuse of “science” to influence policy, almost always to favour leftist agendas. This is prevalent in the areas of Covid, gender transition, race and climate change, to name just a few. Studies or models with low levels of certainty are deployed to support massive social engineering.
Ron DeSantis is one of the few leading politicians today who has really grappled with this. It is one of the main reasons I support him.
A prime example of why activism in the courts is so dangerous. As has become the norm with many radicals in today’s culture we now have a SC Justice that just makes it up as they go along, and as it continues to be pushed in mainstream media, the agenda becomes ‘fact’. Sad.
Suggestion: the feds should set up a system where judicial opinions can only cite scientific studies if they have been vetted through some sort of Daubert (or Frye) process. That process would declare what studies are methodologically sound and what conclusions they can be cited for.
Due to restrictions on justiciability, it couldn’t be an ordinary declaratory judgment action in an Article III court. But there could be a process nonetheless, using some other type of tribunal set up for that purpose.
Through its own internal operating procedures, no federal court, not even SCOTUS, would be allowed to rely on a non-vetted scientific claim – either through a Daubert hearing in the instant case or one that has been vetted by this new process. If the feds did that, the states would start following suit, relying (at least in part) on the federal process and what scientific claims it has endorsed as legitimate.
It’s a pipe dream to think that process wouldn’t be absolutely corrupted.
Then you’re stuck with a supertruth that is a lie.
I have a novel suggestion. Do away with briefs entirely and judge the case on the merits of the claims, the evidence, the harm inflicted or alleged to be inflicted and then compare it to the constitution and any relevant parts of the constitution that come to bear. An alternative is to publicize each amicus brief on the SCOTUS website and invite comment for a period of time so that the justices have the opportunity to review each rebuttal. Restricting the comment period on amicus briefs or limiting their number and length would give the justices a chance to review them.
Also since we are talking medicine I have a great deal of difficulty accepting the AAMC briefs since they are and have been clearly involved in DEI, CRT, and pushing Affirmative Action.
If the readers will remember the covid 19 pandemic was supposedly more severe in black Americans and more common but when adjusted for socio-economic status, type of employment and prior health status there was virtually no differences in the major races.
It has long been a problem in the medical literature for certain centers to have certain “views” on different subjects often to the exclusion of other reasonable opinions. Often money and remuneration is involved. What a surprise!
Lastly Indiana has a medical malpractice statute that requires a 3 physician board to render an opinion on all cases. The plaintiff selects one, the defendant selects one, and those 2 select a 3rd. The panel is chaired by an attorney. There are attempts to match the specialties to the incident and the accused doctors specialty. It renders an opinion within certain parameters set by legislation. You have the patient medical record, hospital medical record, all x-rays, EKG’s, special studies, invasive and otherwise. It pays to have panelists with long experience and multiple interests. No other opinions legal or otherwise are allowed. All legal questions are handled by the attorney chairman. These are often complex, highly difficult, with almost anything involved. The physicians and the attorney are highly proficiency and get it right almost every time. Not perfect but excellent. It is an opinion and the malpractice suit can proceed even with a negative determination against either side.
Timing is often paramount in malpractice cases since important facts that could destroy a defendants case, can, in turn be rendered useless if the defendant never saw the fact or it came in minutes to hours after the fatal event. I have been appointed to many of those panels. Pay is lousy but the cases stretch you mentally and medically.
I’m pretty sure 9 justices of the Supreme Court can make decisions with more limited amicus briefs or none at all.
publicize each amicus brief on the SCOTUS website and invite comment for a period of time so that the justices have the opportunity to review each rebuttal
Call it a Ketanji Brown Jackson hearing to remember what prompted it.
Justice Jackson is affirmative action incarnate.
Terrible pudding the Justice is handing out for us to consume….and that is beyond any effective defense.
Identity politics (affirmative action, equity, diversity, whatever you want to call it) guarantees ability, knowledge, wisdom, ethics, education, training, and experience are trumped by skin color and plumbing.
When it comes some professions and employment we really do want and need the best and brightest in the job.
Doctors, Judges, airplane and ship captains, dentists, Space Shuttle pilots….Professors, the Media….and yes….even politicians.
But that can only happen in a Just and Free Society…..therein lies the reasons why we see what is going on with the Democrat Party these days (in Spades ….referring to playing. cards. folks) which is producing the results that bring us to this particular discussion.
Just think ! At only 52 years old, we have at least another 30 plus years of her legal brilliance to look forward to. She must be related to Stacey Plaskett……
Decades ago reviews and meta-analysis of articles from a cross section of medical journals strongly suggested that a majority of articles that were written in those journals were garbage and not worth the paper they were written on. In general, case studies are the least trustworthy of all such articles and should always be viewed with a suspicion of bias.
I am not familiar with any details of the articles cited by Justice Jackson or Janelle Ross. However, IF those studies are merely case studies (they are usually identified as such in the original article), the warning lights and sirens should be flashing for ANY reader. Those kinds of studies are not entirely worthless but often are quite close to it. Those kinds of studies were (and hopefully still are) used to teach medical students the pitfalls of bias in an uncontrolled study environment. That observational studies would be used as conclusive example of anything is alarming. That a case study would be used as a basis for a position from the Supreme Court of the United States is appalling and demonstrates a fundamental weakness in the judgement of any person relying of such information. Such action would be suspicious of a data mining with a predetermined bias of acquiring information to support one’s goal.
Come on man. She’s not a biologist. What do you expect.
She’s a botanist.
Justice Jackson should have recused herself from this case on the grounds she had conflict of interest.
She did. She only took part in the UNC case, with which she had no conflict.
Justice Jackson continues to be more advocate than jurist. Jurists cite law, advocates cite studies. Then there is Justice Sotomayor, who at times, just seems to make things up.
Sotomayor set the bar so low that you need to listen to Chubby Checker while doing the Limbo Rock to get under it.
The Democrats let the race genie out of the bottle, and there’s no getting it back in. Janelle Ross, black journalist, and Ketanji Brown Jackson, black judge, both have some self-interest in pushing false claims about blacks. The race agenda cannot be separated from the victim agenda, and that’s the excuse for current Democratic policy. Everything from climate policy to social services presumably “affects blacks disproportionately,” and that’s meant to shut up the opposition and prevent anyone from delving deeper than “skin deep” into the nation’s problems.
Generally, when a court has to determine whether a law or practice is unconstitutional, it should ignore pleas based upon argumentum ad terrorem.
From the very beginning action of Jackson’s refusal to define the term ‘woman’ she made herself into a false Justice and a mere shill for a partisan agenda seperate from the constitution. We should expect nothing better from her until she ages out.
Yeah, you just have to continually pull your jaw off of the floor when you consider this woman is on the Supreme Court but cannot tell you what a woman is…because…”I’m not a biologist…”
I realize the insults to SCOTUS by the many affirmative action appointments to this court and throughout the entire governments of these United States that have skewed the bedrock of our constitution to try and “fundamentally transform” this nation into a mere shadow of that ideological utopian pipe dream of all succumbing to the siren’s call of progressive perfection of man via government fiat.
It is apparent that the Left and Dems have grave contempt for blacks.
If they were believed that black lives matter, they would shudder all Planned Barrenhood abortion centers, which are strategically located in black neighborhoods as per Margaret Sanger’s plan of black genocide. The Left and the Dems would march into black neighborhoods, since they brag they are far more educated than any other voting block, to tutor black fatherless school age children, teach job skills to black single parents, teach black young girls how to find suitable young men who will treat them with respect (unlike how black music culture peddles misogyny), and train black males under the age of 35 about gun safety since they commit the majority of black on black homicides.
Alas, that would require the Left and Dems to enter the neighborhoods of black voters on a regular basis so as to effect these positive changes, and they would never be caught alive or dead in “those neighborhoods”. So it follows, grandstanding and virtue signaling black lives matters is a talking point, not to be taken literally by anyone on the Left or by Dems.
Remove statues of Margaret Sanger, Planned Parenthood founder tied to eugenics and racism
https://www.usatoday.com/story/opinion/2020/07/23/racism-eugenics-margaret-sanger-deserves-no-honors-column/5480192002/
Kermit Gosnell was not available for comment.
*Liked by 4
The result-oriented reasoning employed by Justice Jackson has no place in this case. Check this out from Justice Jackson in a made-up opinion: “Evidence suggests that when law enforcement dispels with the protection accorded by the Fourth Amendment, lives are saved. Any warrant-less search is therefore constitutional.”
How will the Queen take such criticism?
Mr Turley, can you recall another time when a justice used false information to support their dissenting or concurring opinion on the SCOTUS?
The recent website case where the entire case was fabricated.
Sammy – how was it fabricated? It was a declaratory judgment action, based on Colorado’s extant public accommodation law and how it applied that law against Jack Phillips. Even the 10th Circuit, which ruled against the plaintiff, agreed she had standing to sue.
If you’re referring to media stories about a false complainant, you should know that SCOTUS did not rely on that complainant to find standing, they didn’t even mention him. The media hyped that story to falsely suggest that the case was fabricated. Perhaps you believed the media’s lies in that regard (?)
Oldman, you can skip your next meal since you just ate Sammy’s lunch!
Clearly Supreme Court Justices are NOT scientists. I wouldn’t be surprised if half of them flunked high school math. Therefore even with the best, most-honest intentions they can error on the side of gross stupidity even without being intentionally misled by dishonest briefs.
So this might be a good time for SCOTUS to adopt some sort of procedure for correcting its own eroneous statements of scientific fact, rather than continuing to allow scientific stupidity to translate into legal stupidity imposed upon our society.
She’s black and she’s a woman. What more did you expect?
As the old saying goes, the proof is in the pudding. “Biden” made it clear this appointment was race and sex-based. Now, the only SCOTUS justice who owes her appointment to affirmative action is demonstrating, through false claims, just how harmful affirmative action can be. Case closed.
Well said deb. My questions, What can be done about her false claims?
False claims can only be challenged, when the media starts tackling this problem. Today’s media will only worsen and not solve this problem…shame on them.
Joey B: The media is the problem — at least a large part of it. Can you imagine if the Trump family were as corrupt as the Biden crime family? It would be plastered on the front pages 24/7/365. But on Biden’s crimes there’s mostly silence. That’s how low America has sunk from its original ideals. And it’s no better on foreign policy. The neocon State Dept. goons are running around the world twisting arms and making threats desperately trying to pull Asia and South America away from the Russia-China alliance. But all they have is tainted carrots and big sticks. We never learn.
anolesman: Probably nothing, but here’s the thing: conservatives, naturally skeptical of anything that comes out of a liberal’s mouth, will never believe her; while liberals, who believe anything their party-mates tell them, will. The sides are prearranged and it really doesn’t matter what this brainless affirmative action twit says — she’s preaching to the choir.
Don’t want to be a nag, but there is no proof in a pudding; the correct expressing is: the proof of the pudding is in the eating.