Justice Ketanji Jackson's false claim in the affirmative action case takes another blow

July 9, 2023
Ryan Ledendecker

In her dissenting opinion to last week's landmark affirmative action decision, Supreme Court Justice Ketanji Brown Jackson made a fallacious claim about Black infant mortality under the care of White physicians.

Jackson intended to demonstrate that race-based admissions are a matter of life and death for racial minorities, and her dissenting opinion in Students for Fair Admissions v. Harvard provided an illustration, as Fox News reported.

Friday, the law firm allegedly responsible for the misleading statement attempted to "clarify" the claim.

Jackson's Argument

Jackson argued in her dissent that diversity "saves lives" and is essential for "marginalized communities" in an effort to prove that race-based admissions policies are equitable and promote equality.

She claimed that diversity is for the "betterment" of students and society 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," Jackson wrote as one example.

This claim originated from an amicus brief filed by attorneys representing a medical college association.

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 a 2020 study that analyzed mortality rates in Florida newborns between 1992 and 2015 as evidence.

In a letter filed to the Supreme Court docket on Friday, Norton Rose Fulbright stated that the argument cited by Jackson in her opinion "requires clarification" and sought to "clarify" the situation.

"The principal cited 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 Black physician," the law firm's letter said.

"In absolute terms, this study found that patient-physician racial concordance led to a reduction in health inequity."

More from The Brief

However, the letter went on to say that, while survival and mortality may be opposites and decreased mortality generally indicates increased survival, "statistically they are not interchangeable. Thus, the statement in the [amicus brief] warrants clarification."

However, the attorney added that the study supports Jackson's argument in her dissent, professing "regret" for "any confusion" the statement in its brief may have caused.

The letter to the Supreme Court added that a "more precise" summary of the findings of the 2020 study would have stated that "having a Black physician reduces by more than half the likelihood of death for Black newborns as compared to White newborns."

In other words, Jackson's claim that having a Black physician "more than doubles the likelihood that the baby will survive" may be misleading because the study on which it is based focused on reduced mortality rates, which are not statistically equivalent to survival.

Norton Rose Fulbright's letter was written after Jackson's statement in her dissenting opinion attracted the attention of a number of legal professionals.

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