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

Supreme Court Justice Ketanji Brown Jackson has faced scrutiny for making a flawed claim about Black infant mortality under White doctors in her dissenting opinion to last week’s landmark affirmative action decision.

Jackson sought to show that race-based admissions are a matter of life and death for racial minorities, and her dissenting opinion in the Supreme Court’s ruling on Students for Fair Admissions v. Harvard cited an example. The law firm apparently responsible for the misleading statement sought to “clarify” the claim on Friday.

Seeking to show that considering race in admissions was fair and realizes equality, Jackson argued in her dissent that diversity “saves lives” and is essential for “marginalized communities.” She asserted that diversity is for the “betterment” of students and society 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,” Jackson wrote as one example.

That 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 2020 study that examined mortality rates in Florida newborns between 1992 and 2015.

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

“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.”

However, the letter continued, 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.”

Still, the lawyer added that the study nonetheless supports Jackson’s argument in her dissent, expressing “regret” for “any confusion” that may have been caused by the statement in its brief.

The letter to the Supreme Court added 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.”

In other words, 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 that statement is based examined lower mortality rates, which is not the same thing statistically as survival.

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

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

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