'Ted Talk' Given After Ketanji Brown Jackson's Disputed Claim About Black Babies in AA Case

AP Photo/Alex Brandon

It has been an incredibly wild (and based!) week with the decisions the Supreme Court has handed down, including the Friday rulings upholding religious freedom and effectively grounding Joe Biden’s student loan forgiveness program.


But though the leftist meltdowns have been plentiful, what has been far more fulfilling to read have been the dissections of what the dissenting liberal Justices wrote on the Thursday affirmative action case ruling and the Friday one pertaining to religious freedom.

Some of those dissections, as we previously reported, came from the court’s conservative members like Neil Gorsuch, who savaged Justice Sonia Sotomayor’s dissent in the 303 Creative case. There was also Justice Clarence Thomas’ straight-fire takedown of Justice Ketanji Brown Jackson‘s race-based arguments in the affirmative action case.

But one doesn’t need to be a brilliant conservative Supreme Court Justice to be able to spot a wildly questionable claim, which is what happened after Justice Jackson’s dissent in the Students for Fair Admissions vs. Harvard/UNC case came under closer scrutiny by legal experts.

In her dissent, Jackson argued in part that “the diversity that UNC pursues for the betterment of its students and society is not a trendy slogan. It saves lives.” And to back up her claim, she cited a brief from the lawyers for a medical group (starts on page 230), which she said proved that black doctors treating black high-risk newborns “more than doubles the likelihood that the baby will live”:

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).98 For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.99


That “99” number at the end was a reference to a Brief filed by the lawyers for the Association of American Medical Colleges, where it was asserted that per a medical study, “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.”

The problem with both Jackson’s citing this claim and the claim itself is that it’s not accurate, according to Hamilton Lincoln Law Institute director of litigation, Ted Frank, who first analyzed the numbers in what he says was a flawed study back in October and again, in the aftermath of this week’s ruling:

Frank further explained himself in a series of tweets, also written at the time:

So right away that’s not a doubling of anything.

But the ceteris isn’t paribus. The white docs aren’t seeing the same infants as the black docs. They’re more likely to get the NICU cases where all infants are less likely to survive, and study doesn’t control for that.

So the study is confusing correlation with causation: if you have a black doctor, your baby is more likely to survive, but that’s because that means you’re less likely to be in the NICU, where there are fewer black doctors. It has nothing to do with the race of the doctor.

Anyway, anyone want to place a bet whether the game of telephone works and takes a bad legal writeup of a bad study and the entirely fictional (but striking!) claim in the brief ends up in a SCOTUS opinion?

I read the wrong chart, in part because the study’s meaningful data is in an appendix. The difference is 99.96% vs 99.91%. And the difference isn’t even statistically significant.


“Such an absurdity. Amazing that Kagan didn’t catch this,” EPPC’s Ed Whelan, an attorney, responded after Frank re-upped the thread Thursday.

Even pseudo-conservative George Conway was blown away. “Wow. Good grief. What an abuse of statistics,” he tweeted.

The woke left, of course, is claiming Frank is playing fast and loose with the numbers but Frank responded to critics by elaborating more in a subsequent tweet:

1. Jackson says having a black doctor instead of a white doctor DOUBLES the chance that a black baby will live.
2. This is mathematically absurd. Even if white doctors were engaged in a Holocaust where 30% of black babies died, that would be a 70% survival rate, which is impossible to double.
3. And, indeed, if one digs down, as I did, to the cited study, it finds that black baby/white doctor has a 99.91% chance of survival. The black baby/black doctor figure is (obviously) not double that, but a statistically insignificant 0.05% difference.
4. Jackson was wrong and should have been able to tell from reading her own sentence she got it wrong.

I’m not an expert at analyzing percentages in these types of complex studies but clearly, there is significant debate over whether or not the claim made by Jackson and others is legit.

As always, I report, y’all discuss.

Related: Say What? Sonia Sotomayor Is Compared to Mazie Hirono After Astonishing Claims in AA, 303 Case Dissents




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