What an embarrassment and this is on Biden, he nominated her.
The Supreme Court’s landmark ruling on affirmative action last week — which ended race-based admissions — has placed Supreme Court Justice Ketanji Brown Jackson’s dissenting opinion under the microscope for its “flawed” claim about Black infant mortality under White doctors.
In Jackson’s dissent, she argued that diversity is for the “betterment” of students and society at large beyond college campuses and that considering race in admissions is fair and realizes equality. To make her point, Jackson cited a 2020 study that examined mortality rates in Florida newborns between 1992 and 2015, reportedly asserting that “for high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
Now, the law firm responsible for the misleading statement in the amicus brief they submitted in the ruling is seeking to “clarify” what Jackson wrote.
In a letter Friday filed to the Supreme Court docket, Norton Rose Fulbright wrote that the statement cited by Jackson in her opinion “warrants clarification,” and that a “more precise” summary of the 2020 study’s findings would have been to say that “having a Black physician reduces by more than half the likelihood of death for Black newborns as compared to White newborns.”
The letter further expressed “regret” for “any confusion” that may have been caused by the statement in its brief.
But that wasn’t enough to get past the sharp eye of several legal experts. In a Wall Street Journal op-ed this week, Ted Frank, a senior attorney at Hamilton Lincoln Law Institute, wrote that Jackson’s claim was “mathematically absurd,” pointing out that “even [if] 40% of Black newborns died – thousands of dead infants every week….that’s a 60% survival rate, which is mathematically impossible to double.”
Frank went on to argue that the 2020 study was “flawed” and didn’t match Jackson’s claim about Black newborns having a significantly higher chance of surviving with a Black physician.
Jonathan Turley, a law professor at George Washington University and Fox News contributor, used Frank’s op-ed and Jackson’s opinion to note that it can be problematic when advocacy groups submit amicus briefs in Supreme Court cases to push studies and other data that the justices use in their arguments: “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….Major decisions or dissents can be built on highly contested factual assertions.”
At the end of the day, it appears this situation highlights the importance of carefully reviewing such sources and the “accuracy of such studies” when justices are deciding important cases, as Turley writes.
For now, however, even the law firm responsible for the misleading statement admits that Jackson’s opinion still supports its argument — even if it does require clarification.