A law firm that submitted an amicus curiae (“friend of the court”) brief cited by Supreme Court Justice Ketanji Brown Jackson in her dissent in the affirmative action case filed a clarification with the Court on Friday.
As Fox News noted, the Norton Rose Fullbright firm filed a letter on Friday with the Supreme Court to clarify a study that Justice Jackson cited to claim that black babies born to black doctors have a higher survival rate.
In her dissent to the 6-3 decision in Students for Fair Admissions v. President and Fellows of Harvard College, which struck down affirmative action in college admissions: Justice Jackson made the following notable claim: “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”
In a response in the Wall Street Journal, plaintiffs’ litigator Ted Frank weighed in:
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%.
How could Justice Jackson make such an innumerate mistake? A footnote cites a friend-of-the-court brief by the Association of American Medical Colleges, which makes the same claim in almost identical language. It, in turn, refers to a 2020 study whose lead author is Brad Greenwood, a professor at the George Mason University School of Business.
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The AAMC brief either misunderstood the paper or invented the statistic. (It isn’t saved by the adjective “high-risk,” which doesn’t appear and isn’t measured in Greenwood’s paper.)
George Washington University Law School scholar Jonathan Turley also took on Justice Jackson’s claim, noting that the brief she cited inis the latest example of litigants “dump[ing] statistics and studies into the record” that the Court is unable to check. “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,” he said”.
In its clarifying letter, Norton Rose Fullbright said that “mortality” had been confused with survival rates:
[W]hile survival is the obverse of mortality and in general terms decreased mortality indicates increased survival, statistically they are not interchangeable. … A more precise summary of the study’s finding would have been to state that having a Black physician reduces by more than half the likelihood of death for Black newborns as compared to White newborns.
The firm claimed that the study still supported Justice Jackson’s dissent, but it did not explain why she referred to black newborns as “high-risk” when that term did not appear in the study.
During her 2022 confirmation hearing, Justice Jackson would not define what the term “woman” meant, saying: “I’m not a biologist.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
