Supreme Court Justice Ketanji Brown Jackson has once more attracted criticism for her use of statistics. Jackson used the statistics to support her dissent from the recent landmark affirmative action decision.
Legal Insurrection previously reported on Jackson’s use of a mathematically impossible statistic that conflated black infant survival and mortality rates in Law Firm Takes the Blame For KBJ’s Bad Math On Black Infant Mortality in Her Affirmative Action Dissent
For the new statistic, Jackson cited the same Association of American Medical Colleges brief that supplied the erroneous survival rate statistic.
The latest alleged statistical flub appears in the sentence immediately preceding the survival rate statistic. This statistic addresses the impact of physician race on pain assessment and management in black patients.
The AAMC submitted its brief as an interested third party defending the use of affirmative action at medical schools. The brief is replete with statistical arguments in favor of more diversity in medical schooling, claiming benefits for patients.
“Research shows that Black physicians,” Jackson’s dissent claims, “are more likely to accurately assess Black patients’ pain tolerance and treat them accordingly (including, for example, prescribing them appropriate amounts of pain medication).”
Critics have claimed the four studies on which the AAMC brief and, in turn, Jackson’s dissent relied do not support the statistic.
George Washington University law professor Jonathan Turley highlighted criticism of Jackson’s pain management statistic on his blog:
[C]ritics object that none of the four studies cited by AAMC support that claim. They reportedly explore problems of Black patients in dealing with pain management, but do not examine the relative efficacy of doctors of different races.
While a couple erroneous statistics in a dissenting opinion may have little consequence, the use of these statistics in support of affirmative action at medical schools may have tangible consequences:
[The critics] further note that AAMC has pushed DEI policies, including the use of race in faculty appointments and admissions to medical schools. These claims are used to justify the use of race as a criterion.
The firm that prepared the AAMC brief, Norton Rose Fulbright, issued a clarification letter to the Supreme Court after critics pointed out the earlier erroneous survival rate statistic.
The firm has yet to address the alleged issue with the pain treatment statistic.
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