In her dissenting opinion, Jackson attempted to illustrate the life-or-death significance of race-based admissions for racial minorities.
Jackson's dissenting opinion in the Supreme Court's ruling on Students for Fair Admissions v. Harvard referenced a particular example. The law firm believed to be responsible for the controversial statement sought to "clarify" the claim on Friday.
In her dissent, Jackson argued that considering race in admissions was fair and essential for achieving equality. She contended that diversity "saves lives," particularly in "marginalized communities," and that it contributes to the "betterment" of students and society beyond the confines of college campuses.
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Jackson wrote, "For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die," as one example to support her argument.
This claim originated 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." This statement was supported by a 2020 study that examined mortality rates in Florida newborns between 1992 and 2015.
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On Friday, Norton Rose Fulbright filed a letter to the Supreme Court docket stating that the argument Jackson cited in her opinion "warrants clarification" and sought to dispel any "confusion."
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The law firm's letter explained, "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 letter further clarified that while decreased mortality generally indicates increased survival, "statistically they are not interchangeable. Thus, the statement in the [amicus brief] warrants clarification."
Despite this, the lawyer maintained that the study still 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 suggested 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."
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This implies that Jackson's claim in her opinion that having a Black physician "more than doubles the likelihood that the baby will survive" could be misleading, as the study on which that statement is based examined lower mortality rates, which is not the same thing statistically as survival.
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Jackson's statement in her dissenting opinion drew the attention of several legal experts, leading to Norton Rose Fulbright's letter.
In a Wall Street Journal op-ed this week, Ted Frank, a senior attorney at Hamilton Lincoln Law Institute, directly addressed Jackson's claim, criticizing the justice for making a mathematical error.
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Frank wrote, "A moment's thought should be enough to realize that this claim is wildly implausible," and questioned, "How could Justice Jackson make such an innumerate mistake?"
Frank further argued that the 2020 study was "flawed" and didn't support Jackson's claim about Black newborns having a significantly higher chance of surviving with a Black physician.
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Frank wrote, "The study makes no such claims. It examines mortality rates in Florida newborns between 1992 and 2015 and 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)."
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Frank concluded, "So, we have a Supreme Court justice parroting a mathematically absurd claim coming from an interested party's mischaracterization of a flawed study. Her opinion then urges 'all of us' to 'do what evidence and experts tell us is required to level the playing field and march forward together.' Instead, we should watch where we're going."
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Jonathan Turley, a law professor at George Washington University and Fox News contributor, used Frank's op-ed and Jackson's opinion to argue in a blog post-Friday that it can be problematic when various advocacy groups file waves of amicus briefs in Supreme Court cases supporting one side or the other by pushing studies and other data that the justices use in their arguments.
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Turley wrote, "My opposition to the brief is that the justices are in a poor position to judge the veracity or accuracy of such studies," and added, "They simply pick and choose between rivaling studies to claim a definitive factual foundation for an opinion."
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Turley further argued, "When you are before the Supreme Court, everyone is free to just dump statistics and studies into the record, and the court regularly uses such material to determine the outcome."
Turley concluded, "The result is that major decisions or dissents can be built on highly contested factual assertions. In this case, critics believe that the Jackson argument literally does not add up."
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On June 29, the Supreme Court ended affirmative action in a landmark 6-3 decision. The case combined lawsuits brought against Harvard University and the University of North Carolina by the student activist group Students for Fair Admissions, which argued that the schools' admissions programs discriminated against Asian applicants in violation of, respectively, Title VI of the Civil Rights Act and the equal protection clause of the 14th Amendment.
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Chief Justice John Roberts wrote in the court's majority opinion, "A benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student's unique ability to contribute to the university."
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