Justice Ketanji Brown Jackson’s glaring error

Mistakes happen to all of us but that doesn’t mean they aren’t pretty embarrassing. That’s especially true when the claim being made is a) obviously improbable and b) you have an entire staff of helpers who also somehow missed it. Justice Ketanji Brown Jackson made the mistake in her dissent on affirmative action.

Beyond campus, the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives. For marginalized communities in North Carolina, it is critically important that UNC and other area institutions produce highly educated professionals of color. Research shows that Black physicians are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication). For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.

The NY Times wrote an editorial about the affirmative action decision which highlighted this particular claim.

…diversity — whether on campus, in business, or in government and society at large — remains a vital goal for any institution, and it will now be more difficult to achieve. The word is not a “trendy slogan,” as Justice Jackson wrote in her dissent. Diversifying medical schools by opening up the profession to Black physicians can save lives, she notes. Black infants, for example, are more likely to survive under the care of a Black doctor.

That dramatic claim about diversity saving the lives of black babies was apparently handed to Jackson in an amicus brief submitted by the Association of American Medical Colleges. However, the AMC and Jackson were both way off in their claims about the study.

…the study does not claim to find a doubling in survival rates for black newborns who have a black attending doctor. Instead, in its most fully specified model, it reports that 99.6839% of black babies born with a black attending physician survived compared with 99.5549% of black babies born with white attending physicians, a difference of 0.129%.

The survival rate of 99.6839% is not double 99.5549%.

The claim that survival rates for black newborns double when they have black physicians is just plain false. The fact that neither the Association of American Medical Colleges nor Jackson’s clerks could read and properly understand a medical study is an alarming indication for the current state of both medical and legal education.

It is true that black women have a much higher infant mortality rate which seems to be connected to low birthweight. The exact causes of that gap are not know though it is known that black women are significantly less likely (about 14%) to get prenatal care. All that to say, the racial gap in infant mortality which Jackson was talking about does exist but the specific claim that black babies are twice as likely to survive with black doctors is false. Working backwards, her claim based on this, that diversity “saves lives,” seems a little shaky.

This wasn’t the only obvious error in progressive dissents. Justice Sotomayor also made at least one in her dissent on the 303 Creative case:

Sotomayor also used the 2016 mass murder at the gay-friendly Pulse nightclub in Orlando Fla., to prove “significantly higher… rates of violent victimization” for LGBT people. Omar Mateen, the Pulse shooter, confirmed after the massacre that he planned to attack Disney World, was deterred by the park’s police presence, and resolved to shoot up the first Google search result for “Orlando nightclubs.” Although the media claimed that the Pulse shooter specifically targeted gay people, the FBI has found no evidence to prove such.

This seems like a pretty simple thing to get right. If you type “Pulse nightclub shooting” into Google, the first result is a Wikipedia page which reads:

In July 2016, law enforcement officials reported that the FBI—after conducting “interviews and an examination of his computer and other electronic media”—had not found any evidence that Mateen targeted Pulse because the nightclub was a venue for gays or whether the attack was motivated by homophobia. According to witnesses, he did not make any homophobic comments during the shooting. Furthermore, nothing has been found confirming the speculation that he was gay and used gay dating apps; however, the FBI “has found evidence that Mateen was cheating on his wife with other women”. Officials noted that “there is nothing to suggest that he attempted to cover up his tracks by deleting files”.

Again, everyone makes mistakes but when you have an entire staff to check on things like this for you, they should be easier to avoid.