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Law Firm Takes the Blame For KBJ’s Bad Math On Black Infant Mortality in Her Affirmative Action Dissent

Law Firm Takes the Blame For KBJ’s Bad Math On Black Infant Mortality in Her Affirmative Action Dissent

The statistic made a ‘mathematically absurd claim’ about the impact of physician race on the survival rate of black newborns: “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”

On June 29, the Supreme Court struck down the Harvard and University of North Carolina’s affirmative action policies. The Court’s newest Justice, Ketanji Brown Jackson, who only participated in the UNC case, penned a 29-page dissent defending the legality of affirmative action.

Tucked into page 23 of that dissent was a dramatic statistic that received much press praise but has since attracted criticism from the legal community because of its “mathematical absurd[ity].”

Jackson, laying out an argument for affirmative action in the context of medical education, described the purported benefits of having more black physicians. That argument included the disputed claim:

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

Lawyer Ted Frank, in a Wall Street Journal column, noted the mathematical impossibility of this assertion. Frank points out that “more than doubl[ing]” the survival rate of black newborns would require that black newborns had a survival rate of less than 50%.

Instead, “the actual [black newborn] survival rate is over 99%,” a survival rate “mathematically impossible to double.”

The footnote for Jackson’s statistic refers to a brief the Association of American Medical Colleges (AAMC) submitted as an interested third party. The AAMC’s brief in turn cites a 2020 study of the impact of a physician’s race on the mortality rate of newborns.

Frank criticized Jackson’s clerks on Twitter for failing to vet the erroneous claim and noted that he correctly predicted the claim would make its way into the opinion:

Frank, who also took issue with the methodology of the study, noted the study does not make the claim cited in the AAMC brief and by Jackson:

The study makes no such claims. It . . . shows a 0.13% to 0.2% improvement in survival rates for black newborns with black pediatricians (though no statistically significant improvement for black obstetricians).

The study found that black newborns attended to by black physicians had a mortality rate of about half that of black newborns attended to by white physicians. Put another way, the study shows a halving in mortality rate, not a doubling in survival rate.

Professor Jonathan Turley of the George Washington University Law School took to Twitter to comment on Jackson’s use of the erroneous statistic, which Turley deemed important to her reasoning. Turley also criticized the practice of “dump[ing] major studies” into briefs, which he argued makes for shakey opinions:

On July 7, Norton Rose Fulbright, the firm that prepared the brief on behalf of the AAMC, sent a letter to the Court “to clarify a statement” in the AAMC brief. The clarification letter acknowledged the misstatement of the study’s findings and expressed “regret [at] any confusion that may have been caused by the statement in the brief.”

The firm, however, contended in its letter that regardless of how one summarizes the study’s findings, “the study strongly supports the statement in Justice Jackson’s dissent that ‘the diversity that UNC pursues for the betterment of its students and society . . . saves lives.'”

The letter of clarification:

The AAMC’s brief:


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Every mistake I make in business (life) has consequences. Most are small.

False information on a Supreme Court case which actually changes the lives of Americans, should have consequences, good or bad.

For some reason
“Hands up, don’t shoot”,
“Russian Collusion”,
“Not from a Wuhan Lab”, “Vaccines Stop Transmission”, “Wear a mask or you will kill grandma”
come to mind.

nordic prince | July 14, 2023 at 7:37 am

“Math is hard” – statistics even more so.

Plus: Math is racist.

It’s not clear to me how KBJ’s lack of critical thinking skills can be laid at the feet of a law firm that didn’t represent a party to the appeal and was advocating for a constitutionally incorrect proposition.

A more reasonable culprit would be her law clerks. If none of her four (?) law clerks pointed out to her that the misstatement made in the law firm’s brief was incorrect, she needs new clerks. Alternatively, if one or more of her clerks pointed out the bogus statement, KBJ just ignored the fact that her opinion was built in part on an incorrect factual premise. All roads lead to one type or another of KBJ incompetence (she failed to cite check a brief by a “friend of the court,” the people she hired to do the cite checking were incompetent, or she willfully incorporated incorrect “facts” into her opinion).

I certainly agree with Turley that back-dooring contested facts into an opinion is wrong. Trials are held to determine facts–facts aren’t established by non-parties advocating their positions.

This really isn’t that complicated.

    JohnSmith100 in reply to Disgusted. | July 14, 2023 at 9:56 am

    “A more reasonable culprit would be her law clerks.”

    This is easy, she hired Affirmative, 9 out of 10 just don’t make the grade.

      slagothar in reply to JohnSmith100. | July 14, 2023 at 10:55 am

      Worse, still, that 1 is not allowed to point out the mistakes of the other 9.

      neils in reply to JohnSmith100. | July 22, 2023 at 1:30 am

      A Supreme Court Justice is responsible for the final content of her own written opinions. She isn’t supposed to uncritically incorporate facts from amicus briefs, nor can she ultimately rely on her clerks to pick up her egregious errors. Her failure to pick up this obvious error is evidence of a lack of critical thinking skills on her part.

    Jackson is AA. Vegas will give you winning odds if you think her law clerks are also AA.

    Not found in the same room at the same time : AA and competence.

“The firm, however, contended in its letter that regardless of how one summarizes the study’s findings, “the study strongly supports the statement in Justice Jackson’s dissent that ‘the diversity that UNC pursues for the betterment of its students and society . . . saves lives.’”

This statement makes absolutely no sense at all.
We were wrong; but, really, we were correct.

    …and they were “saving lives”. What? – Each affirmative action hire gets CPR training?

    Another Voice in reply to herm2416. | July 17, 2023 at 12:59 pm

    “We were wrong; BUT, really, we were correct.”

    First lesson in giving a sincere apology is NEVER follow up or insert the word BUT. It removes any and/or all parts of that apology and leaves no doubt of the insincerity of the one giving it. This one ending statement is one of the more obvious ones.

When you get to the level of a SCOTUS justice there are no such things as innocent mistakes of this sort. It it either a conscious lie designed to justify one’s point or it is incompetence bred by the Left’s’ demand to have ideologues instead of competence in the position.

E Howard Hunt | July 14, 2023 at 7:47 am

If Jackson is so afraid of white doctors, then she should divorce her white, physician-husband and marry a black one. That would double her chance of presenting as an authentic woman of color.

And, yet, dim-witted, “I’m not a biologist” Brown-Jackson gullibly and unquestioningly parroted this manifestly idiotic and false statistic in her dissent, which says a lot about the low quality of her intellect and her clerks’ intellect, as well as her zealous desire to promote a contrived and fallacious narrative supporting her pro-discrimination views.

    CommoChief in reply to guyjones. | July 14, 2023 at 8:09 am

    Then, in the aftermath of a monumental error, we have white knights riding to rescue the damsel from her error. Feminists and their beta male supporters refuse to allow any blame or consequences to attach to poor decision making by feminists. Accountability is their kryptonite.

      Accountability is their kryptonite.
      OK, now you did it. Have to post this.

      I don’t think it’s about sex here. I think it’s about race. Had it been a black male justice, we would have seen the same running to protect by the law firm.

        CommoChief in reply to Tel. | July 15, 2023 at 2:30 pm

        If it’s race then why did both Kagan (white woman) and Sotomayor (hispanic woman) join in supporting Jackson’s Dissent? When the three lefty women on SCOTUS, feminists all, agree on presenting cray Cray stats then it’s about them all being modern/feminist women. The refusal to join the dissent by the demonstrably not feminist ACB is also serves to buttress the case that is about the worldview of feminists.

    You’re using too many words. She won’t understand you.

thad_the_man | July 14, 2023 at 7:57 am

Just one question: Whatever happeneed to Daubert?

She must have heard that a black physician halves the likelihood that a black infant would die. That one’s at least mathematically sound.

    stella dallas in reply to rhhardin. | July 17, 2023 at 10:36 pm

    That conclusion is not correct. There is no causal relationship between the two variables. Very at risk babies end up at medical centers where the specialists are likely to be white. Those physicians treat more seriously ill babies.

Sounds like richer Black families may very slightly, preferentially seek out Black physicians, thus resulting in an imaginary “concordance” between infant mortality and race.

Of course, who knows what their definition of “black” is – or what the same study might say about Hmong, or Irish, or Slovakian “racial” matches.

Maybe they should re-do the study and literally use a brown paper bag to decide race.

It figures that the affirmative action hire on the SC wouldn’t check the work she borrowed for her opinion.

The AAMC’s brief in turn cites a 2020 study of the impact of a physician’s race on the mortality rate of newborns.

The fact that such a study was purported to have existed in the first place should have set the bias alarms wailing. Who would have thought to even ask such a question unless they were grievance hunting?

KBJ is being paid to be a critical thinker. What went through her mind when she read that astounding claim? Because to accept it on face value is indicative of either a confirmation bias or a gross lack of intellectual capability and judicial temperament.

As to her dissent filing, one would think a lawyer/judge would know better than most that if you sign it, you own it.

    geronl in reply to Gosport. | July 14, 2023 at 6:52 pm

    “What went through her mind when she read that astounding claim?”

    Confirmation Bias and that she is an idiot.

    henrybowman in reply to Gosport. | July 14, 2023 at 9:22 pm

    I’m wondering if this might be the very same study that “found” that the mere presence of at least one black doctor in an arbitrary county improved the viability rates of black patients in that county, even if they never crossed paths with one another.

    Tel in reply to Gosport. | July 15, 2023 at 1:34 am

    There has actually been a lot of research on this. The big factor is language, not race. There have been studies that have shown much improved outcomes for Latino diabetic patients with Spanish-speaking doctors. Part of this is language itself, some of it is nuance of specific words (and differences of nuance in translation), and some of it is cultural understanding. A good video on this is here:

    Some black patients are uncomfortable with non-black doctors for various reasons. However, looking at the results of the study quoted in the blog post above, the change in outcomes is not nearly as significant as those connected with Latino patients with Spanish speaking doctors. (The Spanish speaking doctors were better than every other option including live interpreters, phone-in interpreters (which most big hospitals have access to now) and machine interpretation.

thalesofmiletus | July 14, 2023 at 9:11 am

“I’s not a mathemagician!”

According to Wikipedia, NRF has revenues of $2.1 Billion. Imagine being a big corporate client who spends millions on NRF’s services and finding out they do subpar work. I would switch law firms immediately. There is no excuse to pay $1000+/hour for work that is high school-ish. You can pay for a mid-sized law firm with no Harvard or Yale graduates for a fraction of the price and get better service.

chrisboltssr | July 14, 2023 at 9:33 am

At most this proves that this justice doesn’t read her own briefs and that she doesn’t even critically think about things before she says them.

In other words, she proves why affirmative action is bad for black people.

2smartforlibs | July 14, 2023 at 9:55 am

Seems Affirmative action has more to do with her bad math then the Law firm that hired her because of AA.

The core problem is that neither Jackson nor her clerks apparently even read the study linked in the article, which contained the line, “Concordance [of skin color with the patient] appears to bring little benefit for White newborns but more than halves the penalty experienced by Black newborns.” That is not a complicated mathematical statement.

Furthermore, the study did not address at all what you would expect to happen in the real world and could explain the difference. Blacks have more risky conditions in pregnancy and should be referred more often to doctors handling high risk pregnancies, who are more likely to be white. As in all medical specialties, the doctors handling the high risk situations should be expected to have higher mortality rates.

So her argument is that she doesn’t even write or read her own opinion? Wonder how many other faulty opinions were written for Affirmative Action Jackson.
If I was anyone on the losing end of any of “her” opinions I sure would be combing through them now

From now on whatever Jackson writes is going to be scrutinized for more comic relief. Not a good legacy.

Her mommy wrote her a letter?

The most galling thing about this affirmative action hire is not merely her incompetence, but her arrogance.

She needs to take personal responsibility


    CommoChief in reply to gonzotx. | July 14, 2023 at 1:12 pm

    Feminists, aka modern women, don’t take responsibility b/c in their minds it, no matter what it may be, is always someone else’s fault. In recent years, more often than not some beta dude will show up to validate this delusion along with most of her female friends who suffer the same delusions.

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

“The actual black newborn survival rate is over 99%”

So if the 99% survival rate were doubled that would be 198%!

Sweet Sister Josephine!

    Paula in reply to Peabody. | July 14, 2023 at 1:00 pm

    What is the survival rate for black babies who grow up in a black neighborhood compared to those in a white neighborhood?

Her dissenting opinion seems to bolster the argument that Affirmative Action often sets Blacks up for failure.

Apart from the math proving otherwise, the implication is that white doctors are guilty of malpractice, or worse, and other ethical questions.

In others words, they got caught and it is CYA time. Basing her opinions on “studies” instead of the Constitution should get her impeached.

By what possible mechanism can black doctors halve the mortality rate of black newborns? Does that allegedly superior care translate to non-black newborns, or did nobody bother to do this obvious control check? Why aren’t they teaching white doctors their superior methods, or are they strangely content to let black babies die when treated by them? Basically, I don’t believe a word of this study.

So her dissent will be amended right?
I knew every ruling from her would be from the Cultural Marxism’s.

Suburban Farm Guy | July 16, 2023 at 9:27 am

Affirmative Action Judge likes Affirmative Action! Shocker. And reveals why Affirmative Action must be OVER as the racist garbage it is promotes just produces more racist garbage.

In defense of Justice Jackson, it’s not fair to hold her responsible for such an egregious error. After all, she’s a woman.

The error was in relying at all on the study that Association of American Medical Colleges/Norton Rose Fulbright foisted on the willing Ketanji Brown Jackson. That study is full of weaknesses. See,

the most highly specified model still shows an improvement in black newborn survival. But if you know how to read the numbers—the authors don’t say it—it also shows black doctors with a statistically significant higher mortality rate for white newborns, and a higher mortality rate overall, all else being equal.

So, that study, sadly, is a call for apartheid.

It’s one thing for a law firm’s sloppy brief to mislead the court. It;s another that that the information goes unchecked / scrutinized by Justice Brown or her clerks. It avoided scrutiny because the misleading brief supported Justice Browns bias’s. Justice Brown is what she appears to be and she cannot be saved by a law firms correction memo.

I’m not surprised by either the mistake or the time it took to surface. Many young lawyers stopped taking math in about eighth grade. Most judges have no idea of what pi nor Avogadro’s number are. In my opinion, this is part of the reason so many judges refused outright to even consider the very real evidence of election fraud. They are nearly all innumerate.

The is a clip of Carl Sagan talking about the consequences of having a scientifically inept political class. The date in the original tweet has been corrected.

Helena Handbasket | July 19, 2023 at 12:07 pm

AA-based college admission, hiring and promoting gives the implication that those with stronger credentials were passed over for those who checked the proper social box. Situations like this do nothing to damage that stereotype.

It was really stupid to put in that mistake. The actual results of the study are significant, even if they don’t support KBJ’s dissent which, as I remember, made little sense at all.

Having a black OBGYN in the room reduces deaths of black newborns by about 1/3 vs. a white OBGYN. If I were a black prospective parent, I would take that seriously and seek a black OBGYN to take care of a pregnancy.

As for KBJ, I’m really impressed by her ability to keep a lid on it until she joined SCOTUS. There really was little evidence that she was such a biased ideologue in her work as a judge in lower courts.