Justice Ketanji Jackson’s Faulty Claim in Affirmative Action Case Takes Yet Another Hit as Lawyers Seek to ‘Clarify’ Brief

Supreme Court Justice Ketanji Brown Jackson continues to face scrutiny for making a flawed claim about Black infants facing mortality at the hands of White physicians in her dissenting opinion to last week’s groundbreaking affirmative action decision. 

Justice Jackson sought to demonstrate that race-based admissions are a matter of life and death for racial minorities and cited an example in her dissenting opinion in the Supreme Court’s ruling on Students for Fair Admissions v. Harvard. 

As a result, Friday, the law firm apparently responsible for the misleading statement sought to “clarify” the claim. 

When seeking to show that considering race in admissions realizes equality and was fair, Jackson argued in her dissent that diversity “saves lives” and is essential for “marginalized communities.” She asserted that diversity is for the “betterment” of society and students at large beyond college campuses. 

“For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live and not die,” wrote Jackson as one example. 

Jackson’s claim came from an amicus brief filed by lawyers representing an association of medical colleges. The brief stated that for “high-risk Black newborns, having a Black physician is tantamount to a miracle drug; it more than doubles the likelihood that the baby will live,” citing as support a study conducted in 2020 that studied mortality rates in Florida newborns between 1992 and 2015.

In a letter filed on Friday to the Supreme Court docket, Norton Rose Fulbright wrote the argument Jackson cited by Jackson in her opinion “warrants clarification” and sought to clear up any “confusion.”

“The principal cited the finding of the [study] was that the mortality rate for Black newborns as compared to White newborns decreased by more than half when under the supervision of a Black physician,” said the law firm’s letter. “In absolute terms, this study found that patient-physician racial concordance led to a reduction in health inequity.”

However, the letter continued that while mortality and survival may be opposites and decreased mortality generally indicates increased survival, “statistically, they are not interchangeable. Thus, the statement in the [amicus brief] warrants clarification.”

In other words, Justice Jackson’s claim in her opinion that having a Black physician “more than doubles the likelihood that the baby will survive” could be misleading because the study on which she based her statement examined lower mortality rates, not survival rates.

Norton Rose Fulbright’s letter came after Jackson’s statement caught the attention of several legal experts. 

Wall Street Journal op-ed blasts Justice Jackson’s claim

In a Wall Street Journal op-ed this week, senior attorney at Hamilton Lincoln Law Institute, Ted Frank, responded directly to Justice Jackson’s claim and lambasted her for making a mathematical error. 

“A moment’s thought should be enough to realize that this claim is wildly implausible,” Frank wrote. The attorney filed an amicus brief in support of Students for Fair Admissions. “Imagine if 40% of black newborns died — thousands of dead infants every week. But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%. How could Justice Jackson make such an innumerate mistake?”

Frank continued, arguing that the 2020 study was “flawed” and didn’t match Jackson’s claim about Black newborns having a markedly higher chance of surviving with a Black physician. 

“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),” wrote Frank.

“So, we have a Supreme Court justice parroting a mathematically absurd claim coming from an interested party’s mischaracterization of a flawed study. Her opinion then urges ‘all of us’ to ‘do what evidence and experts tell us is required to level the playing field and march forward together.’ Instead, we should watch where we’re going.”

Law professor at George Washington University, Jonathan Turley, used Frank’s op-ed along with Jackson’s opinion to argue in a Friday blog post that it can be a problem when various advocacy groups file waves of amicus briefs in Supreme Court cases supporting one side or the other by pushing data and studies that the justices use in their arguments. 

“My opposition to the brief is that the justices are in a poor position to judge the veracity or accuracy of such studies,” wrote Turley. “They simply pick and choose between rivaling studies to claim a definitive factual foundation for an opinion. When you are before the Supreme Court, everyone is free to just dump statistics and studies into the record, and the court regularly uses such material to determine the outcome.”

“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,” Turley continued.

The Supreme Court ended affirmative action in a landmark 6-3 decision announced on June 29. The case combined lawsuits brought against the University of North Carolina and Harvard University by Students for Fair Admissions, a student activist group, which argued the schools’ admissions programs discriminated against applicants in violation of Title VI of the Civil Rights Act and the equal protection clause of the 14th Amendment.