Ted Frank on Justice Jackson's Dubious Claim about Infant Mortality among Black Americans

Frank writes in the Wall Street Journal:

In a dissent from last week's ruling against racial preferences in college admissions, Justice Ketanji Brown Jackson enumerated purported benefits of "diversity" in education. "It saves lives," she asserts. "For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live."…

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)….

Even the much more modest Greenwood result—which amounts to a difference of fewer than 10 Florida newborns a year—is flawed. It uses linear regression, appropriate for modeling continuous normally distributed variables like height or LSAT scores but not for categorical low-probability events like "newborn death." The proper methodology would be a logistic model. The authors did one, hidden deep in an appendix rather than the body of the paper.

There, 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.

Comments

[Craig Johnston]

The end of the post appears to be corrupted.

[Tom for equal rights]

Its not like KBJ or sotomayor were very good with basic math (remember sotomayor’ comments in the covid mandate case as an example)

Of course math is racist

[Randal]

Well...

Ok. Jackson and the AAMC should be more careful but...

It's obvious what they meant. They meant that having a Black doctor cut the newborns' chance of dying in half. Now of course, that's not the same as doubling the chance of survival. But it sort of is, when it's that obvious what is actually meant.

I bet there are lots of examples of this colloquial probability-inversion mistake floating around.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Colloquialism is out of place in legal opinions, especially when they are used for their shock value instead of proving anything.

[Aunt Teefah]

I agree that she should've phrased it as "halved the likelihood of dying" rather than "doubled the likelihood of living." Precise and accurate language is important in Supreme Court opinions. But she is hardly the worst offender on the current Court. Last year, the majority opinion in a significant religious exercise case (the praying football coach case) essentially invented the material facts of the case out of whole cloth. And this year's 303 Creative case was premised on a "dispute" that was an obvious fraud to anyone who would've cared to look. The justices (or their clerks, at least) need to be better at checking facts.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

It’s ok since everybody else is doing it too.

ETA The overall point is that the claim was mathematically impossible on its face. The chances of survival can only be doubled if they were abysmally low to start with, 50% or less. To parrot such blatant nonsense shows a mind which was intent on shock rather than truth.

[Randal]

But that's why it so obviously meant halve the chance of death. It's not at all ambiguous since, as you point out, the literal reading doesn't work.

Again, still, she should've been more careful.

[Michael P]

"The literal meaning is phenomenally stupid, so it must have meant something else" is a terrible attempted excuse for writing something thoroughly wrong.

[Aunt Teefah]

"It’s ok since everybody else is doing it too."

I pretty clearly said the exact opposite - this whole Court produces shoddy work product, and that's a bad thing that needs fixed.

[zztop8970]

303 Creative was not premised on the allegedly fraudulent service request.

[Scooter]

"And this year’s 303 Creative case was premised on a “dispute” that was an obvious fraud "

This is a false statement.

[Religion and Politics, my life]

You too need to check when you say 'dispute"

You are so wrong you might want to consider plastic surgery or witness protection or astral projection

"“Lorie gets requests all the time, even now,” Scruggs said.

Smith and ADF were prevented from running a background check on Stewart to verify the authenticity of his request because it could have put them in conflict with the existing law, he added.

“If she had declined a request, or sent out an email saying ‘hey, I don’t create websites for same-sex weddings,’ she would have violated the law,” he said. “It puts her at extreme risk to go and interrogate somebody for these requests. The whole reason she filed the lawsuit is to get clarity.”

[Joe_dallas]

Aunt telefax

303 was actual live dispute

Read the stipulated facts before repeating a leftist misrepresentation of the facts.

At least the three liberal justices were smart enough not to repeat the lie

[Tom for equal rights]

She was attempting to use a very deceptive stat (as stat that statistically insignificant) to justify her policy preference. Further it was a stat, that when examined in full context contradicted her conclusion - full context being taking into all the cofounding variables.

[AtR]

I agree ... neither KBJ nor Sotomayor seem to run down their central theses to their sources. They are content with accepting the gestalt view if it supports their own predilections.

This is advocacy ... not judgement.

[Religion and Politics, my life]

No, it Biden-like lazy stupidity

[damikesc]

Except, Randal, that is not even close to being true.

[Lee Moore]

They meant that having a Black doctor cut the newborns’ chance of dying in half.

That would also have been a mistake, though a different one.

The sums are confounded by the fact that the care of babies, black white or any other color, is not entrusted to black and white docs evenly. Babies at serious risk are dealt with by specialists. Indeed the docs with the worst survival stats for babies in their care, are the most expert docs.

I don’t know the racial breakdown of specialists in the at-risk baby delivery business, but it would astonish me if black docs were not significantly underrepresented, since that is the case in all expert professions.

From my own personal experience I would have to say that 100% of the expert docs in this field are Chinese. But we probably need a larger sample than 2.

I doubt either Justice would make this kind of error if they were presented with statistics showing that kids in charter schools do better than those in ordinary public schools. The possibility of differential intakes would spring instantly into their minds.

[Randal]

Yes, and this is a much more interesting, enlightening, and worthy critique of Jackson's opinion than the superficial one in the OP. David just loves those sorts of juvenile gotchas that don't really matter. He relishes demeaning his enemies by pointing out their simple mistakes. He should, like you, focus more on errors of judgement and less on imprecise language.

I was very disappointed by the dissents.

[bernard11]

This is a very reasonable point.

Personally, I found the raw numbers so large as to be pretty implausible without further digging.

[John Rohan]

No, even “doubling the chance of survival” isn’t accurate either. The National Review explained it this way:

The study, however, finds that black infants have a 99.6 percent survival rate with black doctors and a 99.8 percent survival rate with white doctors. What Jackson misinterpreted when she claimed that the black infant survival rate “doubles” with a black doctor is the discrepancy that more white doctors are in Neonatal intensive care units (NICU), where babies are less likely to survive. If a black baby has a black doctor, it’s likely because that baby is not in a NICU, which of course yields higher survival rates.

https://www.nationalreview.com/news/fact-check-liberal-supreme-court-justices-rely-on-false-claims-about-racism-anti-gay-bigotry-to-bolster-dissents/

[Toranth]

It's worse than that, since the paper explicitly gives the percent-of-rate change:

In the fully specified model, we add physician fixed effects to allow comparisons of Black and White infant mortality rates within physician (column 6). In these estimations, the mortality penalty for Black newborns is 39% lower under the care of Black physicians than White physicians.

So not only did Jackson (mis-)cite a reversed statistic from a study that ignored highly-relevant factors, she also got the original number wrong even though the paper wrote it out for her in the exact numbers she supposedly wanted.

[Darth Buckeye]

Is Jackson at fault, or her law clerks? Her fault is probably limited to not being skeptical enough of an explosive detail like this.

[BadLib]

Did the law clerks put their name to the dissent?

Were the law clerks confirmed by the Senate?

Will the law clerks likely be in their position for decades?

A Justice is responsible for every word of every opinion they "write" and hence they are as responsible for errors no matter who initiated them. If a Justice is not reviewing the portions of the arguments their law clerks write, they should resign.

[Religion and Politics, my life]

To be at odds with so many of your colleauges means you are at fault.

[BravoCharlieDelta]

So black doctors kill more patients and White babies, according to the data?

The kill more patients one can be explained by Affirmative Action. While the black doctors killing more White babies can best be explained by racial animus.

[Aunt Teefah]

^ Least deranged conservative in 2023.

[Bwaaah]

All of this is a great example of the fact that CORRELATION DOES NOT, IN ITSELF, INDICATE CAUSATION. (Correlation is *all* they have here.) And when all you look for is differences by race, all you'll find is differences by race. (And you get to pick the differences you like talking about, so you sound all sciency about it.)

This is based on an August 2020 (the summer of the "racial reckoning") data analysis.

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7474610/
https://www.pnas.org/doi/suppl/10.1073/pnas.1913405117/suppl_file/pnas.1913405117.sapp.pdf

The "race" of the doctors is not in the data set, so to fix that, they look up pictures of the doctors, make a race determination, and leave out any baby or doctor that isn't deemed to be "white" or "black," or treated by "white" or "black."

"Of the ten research associates [tasked with determining race], four demonstrated 100% accuracy." (LOL)

(It's good that they can't spot the Jews, or I'm confident we'd see statistical shenanigans there too. And it's also good that they left out "Asian" doctors, because I suspect that an even more "disproportionate" number of patients died in their care, being that they constitute a disproportionately large portion of the doctor population).

Now this story is about newborns who die, and "the doctor who treated" him/her. For each dead baby, they select *one* doctor, the one called "the attending physician," to be the race of the provider. You might want to consider, when a patient encounters severe problems in a hospital, how quickly a team of specialists and consulting doctors are brought into the process. The more complicated the case, the more the attending physician acts in a communication/coordination role, and not necessarily as a technical lead on a case (which tends to shift to "neonatal care" specialists). So this is to suggest that when babies are dying, the primary care physician becomes less and less controlling in the care. (But we do know "his" race, and that he's the one who gets credit for the "mortality penalty." LOL.)

Their conclusion includes the most invaluable point that they [misleadingly] left out of their opening (which oddly precedes the traditional "Abstract"). From the conclusion:

"We are unable to observe the mechanism that is driving the observed result, or the selection process of the physician. While most accounts, as well as our discussions with practicing pediatricians, suggest that newborns are assigned in a quasi-random format to the on-call pediatrician (the birth process itself being quasi-random due to timing), this is worth discussing."

Indeed.

It's funny to me that the study showed no significant "mortality penalty" of white doctors treating black mothers, but only in white doctors treating black newborns. That would indicate, to a discriminating eye (like Judge Jackson's), some subconscious difference in white thinking, no?

Anyway, this looks like a good example of Race Science. It's a product of an intellectual philosophy sometimes referred to as "Critical Race Theory" in which we re-examine all things "through the lens of race."

Heaven help us all.

[Darth Buckeye]

Correlation is not causation. My dad was an OB/GYN who graduated medical school in 1931 and retired in 1979. He specialized in high-risk pregnancies including expectant birthing parents suffering from cancer. I have no doubt that the percentage of his patients who experienced negative outcomes including death was higher than average. That is a function of the fact that the population of patients he treated were higher risk.

[Religion and Politics, my life]

Correlation is not lack of causation either. Right? It just doesn't prove anything.
And you leave out a common cause explanation.

More swimmers at the beach and higher stock prices might both by manifestations of a general optimism

The fallacy of ignoring common cause occurs when one notices a constant correlation between A and B and assumes A caused B (or vice versa) while ignoring that there is a third variable, C, that causes both and therefore accounts for the correlation.

[Bwaaah]

Rather than get lost in an abstract debate about logic, come back to the question of that particular study. It has a justifiable conclusion in the end, but misleadingly misstates that conclusion in its beginning. That misstatement is now being publicly parroted as *the* conclusion of the study, which it is not. What, in this, do you disagree with?

[bernard11]

You mean that because they qualified their results appropriately that the results are no good?

[Bwaaah]

No, they did not qualify their results in their opening remarks (the part that's meant to save you the trouble of reading further). In their opening section entitled, "Significance," they stated:

"Findings suggest that when Black newborns are cared for by Black physicians, the mortality penalty they suffer, as compared with White infants, is halved."

That is a false statement, and it is not qualified. It's a bait (in the opening) and switch (in the end) that leaves lazy or uncritical analysis, as by the Association of American Medical Colleges, with a false impression that is contradicted by their conclusion. If you choose to state your conclusion in two places, then you have to state your conclusion in two places. Their "Significance" section, like an "executive summary" in a policy statement, is FALSE.

[Dr. Ed 2]

"It’s funny to me that the study showed no significant “mortality penalty” of white doctors treating black mothers, but only in white doctors treating black newborns."

I reached a different conclusion -- White doctors are more reluctant to call child protective.

[damikesc]

It's disconcerting that justices are using bad information to "inform" their bad decisions. That Token went for the most asinine explanation of a bad study (yup, white doctors do not mind killing black babies. Makes TOTAL sense) indicates she really does not belong on ANY court, much less SCOTUS.

...and do not whine about Token being a token. Biden said she was.

[Ed Grinberg]

Shhhh!!! You can't mention it, except to praise Biden (and, of course, Ms. Jackson). Ask Ilya Shapiro!

[AtR]

I think it's obvious that they are *not* using the information to inform their decisions, but rather to buttress them. These are preconceived decisions in search of support.

[ChrisC]

It's my lifelong experience that lefties say stupid or false shit and dare you to fact check them.

[Alpheus W Drinkwater]

yawn

[Rossami]

Copy-paste error? Or is the original WSJ article really that poorly edited?
And now fixed. Thanks.

[Bored Lawyer]

The bigger problem, IMO, is not that Justice Jackson made this mistake, but where she got it from: an amicus brief from the Association of American Medical Colleges. The brief is here:https://www.supremecourt.gov/DocketPDF/20/20-1199/232119/20220728171113348_20-1199%20and%2021-707%20Amicus%20Brief%20for%20Association%20of%20American%20Medical%20Colleges%20et%20al.pdf

The AAMC describes itself:

The Association of American Medical Colleges (“AAMC”) is a non-profit educational association whose members include all 156 accredited U.S. medical schools; more than 400 teaching hospitals and health systems; and more than 70 academic societies.

On page 4 of the amicus brief:

And 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. (fn)Brad N. Greenwood et al., Physician-Patient Racial Concordance and Disparities in Birthing Mortality for Newborns, 117 Proc. Nat’l Acad. Scis. No. 35, 21194, at 21195-97 (2020).

In defense of Justice Jackson, she did what many jurists do: defer to the experts. And here you had an association of all the medical schools in the country, plus hundreds of teaching hospitals. So if all of these credentialed doctors say it’s so, then it’s so. Charitably, the persons who wrote that were grossly negligent. Less charitably, science has been infected with politics.

Judges need to take the claims of “experts,” even the “consensus of experts” with a cartload of salt. As this event shows, junk science can be given a veneer of respectability very easily. It’s still junk science, and should not be relied upon to determine cases.

[Tom for equal rights]

Adding to Bored lawyer comment - is not only junk science a problem but the inability to recognize the dubious nature of much of the "science"

[SKofNJ]

Except that anyone with half an ounce of common sense would read that and doubt it's veracity and would therefore double-check that claim before endorsing it before the world.

[ah....Clem]

QUESTION:

Did you read the Greenwood paper itself, or are you simply taking Frank’s word on it?

I haven’t read the paper yet myself so I don’t know which to believe, but anything on the WSJ op-ed page should be taken with a huge grain of salt.

The paper is at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7474610/

[Bored Lawyer]

No, I will look, when I have time. But neither did Justice Jackson. She read an amicus brief, which I read.

I repeat, the issue here is judicial reliance on junk science, not the junk science itself. Had she not cited it, the scientific paper would have remained for debate among doctors.

[ah....Clem]

Do you know she didn’t? Or that none of her clerks did?

It took less than five minutes to find the article and read the introduction, which says “Findings suggest that when Black newborns are cared for by Black physicians, the mortality penalty they suffer, as compared with White infants, is halved.”

I would expect that somebody on her team would get that far. As for the rest of the article, it’s not my field of expertise and I’m not going to slog through all the methodology and statistics looking for flaws – the article was published in a peer-reviewed academic journal, which to my eye has a lot more credibility than David Bernstein or the WSJ op-ed page. YMMV.

The ironic thing here is that Bernstein seems to be engaging in exactly what he’s accusing Jackson of – simply accepting Frank’s version without checking the actual paper.

[Jett's Pop]

Bernstein posted Frank's article. He did not comment on it or vouch for it (at least in the version of the blog I just read) in its entirety.

In characterizing Justice Jackson's claim as "dubious," Bernstein seems well supported. There's a difference between a "mortality penalty" being halved and a chance of survival being doubled. The latter was the AAMC's and Justice Jackson's claim.

[Dr. Ed 2]

There is a real quality control issue in peer-reviewed articles.

[ah....Clem]

From the introduction to the paper:

A large body of work highlights disparities in survival rates across Black and White newborns during childbirth. We posit that these differences may be ameliorated by racial concordance between the physician and newborn patient. Findings suggest that when Black newborns are cared for by Black physicians, the mortality penalty they suffer, as compared with White infants, is halved. Strikingly, these effects appear to manifest more strongly in more complicated cases, and when hospitals deliver more Black newborns. No such concordance effect is found among birthing mothers.

So, when Frank says "The study makes no such claims." I can only assume that either

a) he hasn't read the paper
b) he's lying or
c) he's disingenuously talking about some other study.

Now, perhaps the studies are flawed, or there's some other good reason to discount the conclusions, but to claim that the article says something other than it clearly does is... well... exactly the crap one expects from a Murdoch publication.

[Tom for equal rights]

Ah clem - the first red flag is that introduction stating that it is a social science study, not a medical science study. The study authors tried to hide the social study aspect, though that red flag is obvious - or should have been obvious. fwiw - dont be impressed with the "peer review" label.

[Sarcastr0]

It's not hidden if it's in the intro.

And of course you hate social science, sight unseen.

Saves on thinking, I guess!

[Michael P]

The claim he was talking about is "For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live." The study does not make any such claim; the amicus brief and the dissent make that distorted, erroneous claim.

[John Rohan]

I can only assume that YOU haven't read the very paragraph you just quoted. It didn't say that black doctors double the likelihood that the baby will live.

It didn't even say mortality was halved. Look carefully. It said the "mortality penalty" was halved. Seems subtle, but it's a VERY important distinction.

[AtR]

The editorial itself lists a number of methodological flaws (e.g., using linear regression instead of a logistic model), but there are also an huge number of potential confounders that do not appear to be addressed in the paper (e.g., socioeconomic status of mothers, hospital location, doctors). As a speculative hypothetical, maybe Black doctors tend to get jobs in top hospital settings (due to, say, affirmative action) where outcomes are better (although this doesn't explain why maternal outcomes were unaffected).

This is an interesting first-step research result, but it is far from something upon which to base a judicial decision.

[Lee Moore]

The procedure for amicus briefs happens to be one of the very few subjects on which my expertise is not comprehensive, but I am willing to comment all the same.

It seems to me that amicus briefs, whle advertised as a useful mechanism for educating judges, represent a bit of a wrench in the works of the adversarial justice system. For when opposing counsel fills his brief with poppycock, your counsel has every opportunity to nuke said poppycock from orbit. Thus the judges are left with poppycock and anti-poppycock, and can decide between them.

But what happens when the poppycock is in an amicus brief ? Your counsel could devote some part of his scarce resources, and permitted briefing pages, to nuking the amicus poppycock - but that would detract from the resources and pages he has to nuke opposing counsel's poppycock.

Hence allowing amicus briefs, forces counsel to defend against several foes at once, and since the foe to whom the court is most likely to be listening is the opposing counsel, that means amicus briefs can go unanswered.

And so impressionable, non numerate justices may be left lapping up the un-nuked amicus poppycock by the ladleful.

In short what is the policing mechanism - which exists for the cut and thrust of the parties' own counsel - whereby it is ensured that amicus briefs lead innocent judges towards the truth rather than away from it ?

[Alpheus W Drinkwater]

That's all based on the same assumption that Frank made in his article - that Justice Jackson based her assertion on the Greenwood paper. The footnote mentioned in the dissent is not directly tied to that assertion, so we don't really know. And as Frank himself points out, "high-risk" isn't a metric measured in the Greenwood paper. So perhaps the assumption you and Frank are making is incorrect.

[Ed Grinberg]

How could Justice Jackson make such an innumerate mistake?
...
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.

compare (from a 2019 Radio Derb podcast):
"... the innumerate nonentities on the U.S. Supreme Court ..."
Mr. Derbyshire links to this law review article to illustrate his point:
https://scholarship.law.upenn.edu/faculty_scholarship/352/

[DonP]

The "Cause" is always more important than mere statistics and facts. You're talking about people immersed in; "The end justifies the means" culture.

[Lee Moore]

This reminds me once again of one of FE Smith's witticism's.

In court, as counsel, he explained some technical point of law to the judge, after which the exchange continued thus :

Judge : "I'm afraid, Mr Smith, that despite your explanation, I'm none the wiser."

FE Smith : "No, My Lord, but better informed."

[John F. Carr]

If the Supreme Court confined its judgments to what was necessary based on the facts, it would not decide whether a medical school could set a quota of African-American obstetrician-path students. It need only say that the justifications offered by Harvard for discrimination in undergraduate admission based on broad statistical categories are not sufficient.

When a case came up involving medical schools the District Court would have the benefit of extended argument on what the study does or does not prove. The Supreme Court would, in theory if not in practice, be bound by its finding of facts.

[Frank Drackman]

So Ki-grungy Jackson Brown can’t tell an XX from an XY but now she’s an expert in Neonatology?? (they have experts in Neonatology, they’re called “Neonatologists”) And he wasn’t exactly a newborn, but Michael Jackson’s "Black Physician" didn’t really double Jacko’s life expectancy.

Frank “Dr. Gosnell will Abort you now”

[Dan Schiavetta]

There’s a reason that article appeared in the WSJ opinion pages and not in its news section.

[Michael P]

Yes: It requires no real research or fact-checking to implode KBJ's fiction, and so they don't need to spend resources from the news department on it.

[Roger S]

The news section is controlled by leftists.

[Religion and Politics, my life]

Your hubris in thinking no one knows your name is disgusting

cat·a·chre·sis
noun
the use of a word in a way that is not correct, for example, the use of mitigate for militate.

[Darth Buckeye]

Justice Jackson needs better clerks.

[bernard11]

Some points:

1. This was indeed pretty careless, but hardly a hanging offense. She quoted someone who had misstated the results of a study, without checking the study or even asking a basic question about the statement. I doubt it's the first time a Supreme Court opinion has contained an obviously erroneous sentence.

2. Despite Frank's sneering at the percentage change, and not telling us the baseline, the difference is in fact significant. Remember, those percentages are of all newborns, the vast majority of whom are not at serious risk. Imagine a disease that affects .1% of the country - about 330,000 people a year. A treatment that increased the number of survivors from 100,000 to 200,000 would be a pretty big deal. But by Frank's numbers it's a paltry .03% increase.

3. I think Frank's point, not quoted by Bernstein, that the population of specialists who would be called on to handle the worst cases is more heavily white than the total population of pediatricans, might explain the results without reference to "concordance" is a good one. Lee Moore makes that point in a comment above.

4. The study results are remarkable to the point of implausibility. I think the researchers should delve further to try to identify the mechanism. I don't buy that it is simply concordance.

5. Somewhere Frank makes a reference to "affirmative action doctors." This detracts from his credibility, and suggests he is not a totally objective observer.

6. If Frank wants to pose as a statistics expert maybe he shouldn't describe LSAT scores as a continuous variable.

[John Rohan]

No one said this was a "hanging offense" (bad choice of phrase for a black justice, but whatever).

The point is, this supposedly brilliant judge didn't even question this ridiculous claim. This same judge that can't even state what a woman is. And that's not even getting into the fact that interpreting the law as written should have zero to do with the law's social effects anyway. That's Congress's job.

[Sarcastr0]

Yeah...you're absolutely trying to make this into a thing that you get to yell about forever.
As is much of the thread.

That's what bernard was talking about, and you're right here denying it and doing it all at the same time.

[John Rohan]

I have no idea who or what you are talking about.

[MosheB]

Seems to me that there's a more basic problem with KBJ using that data point in this context. Even if all of the statistics were correct, how on earth would that be relevant to who graduates from Harvard??? Does having a black doctor only save lives if they've graduated from an ivy league school??? As Justice Thomas noted in his concurrence,

"Black Colleges and Universities (HBCUs) do not have a large amount of racial diversity, but they demonstrate a marked ability to improve the lives of their students. To this day, they have proved “to be extremely effective in educating Black students, particularly in STEM,” where “HBCUs represent seven of the top eight institutions that graduate the highest number of Black undergraduate students who go on to earn [science and engineering] doctorates.” W. Wondwossen, The Science Behind HBCU Success, Nat. Science Foundation (Sept. 24, 2020), https://beta.nsf.gov/science-matters/science-behind-hbcu-success. “HBCUs have produced 40% of all Black engineers.” Presidential Proclamation No. 10451, 87 Fed. Reg. 57567 (2022). And, they “account for 80% of Black judges, 50% of Black doctors, and 50% of Black lawyers.” M. Hammond, L. Owens, & B. Gulko, Social Mobility Outcomes for HBCU Alumni, United Negro College Fund 4 (2021) (Hammond), https://cdn.uncf.org/wp-content/uploads/ Social-Mobility-Report-FINAL.pdf; see also 87 Fed. Reg. 57567 (placing the percentage of black doctors even higher, at 70%). In fact, Xavier University, an HBCU with only a small percentage of white students, has had better success at helping its low-income students move into the middle class than Harvard has. See Hammond 14; see also Brief for Oklahoma et al. as Amici Curiae 18. And, each of the top 10 HBCUs have a success rate above the national average. Hammond 14.12

 Why, then, would this Court need to allow other universities to racially discriminate? Not for the betterment of those black students, it would seem. The hard work of HBCUs and their students demonstrate that “black schools can function as the center and symbol of black communities, and provide examples of independent black leadership, success, and achievement.” Jenkins, 515 U. S., at 122 (Thomas, J., concurring) (citing Fordice, 505 U. S., at 748 (Thomas, J., concurring)). And, because race-conscious college admissions are plainly not necessary to serve even the interests of blacks, there is no justification to compel such programs more broadly. See Parents Involved, 551 U. S., at 765 (Thomas, J., concurring)."

[ah....Clem]

This post is by David Bernstein, not EV.

[Bored Lawyer]

Ah yes, another substance-less shoot-the-messenger post.

What do you think about a Supreme Court justice including junk science in her opinion? Think that increases or decreases her credibility?

And the issue here is not epidemiology, but judicial reliance on purported scientific expertise. This is not a discussion of an article in a medical journal, but a discussion of a citation in a SCOTUS dissent to an amicus brief citation to an article in a medical journal.

[Tom for equal rights]

"And the issue here is not epidemiology, but judicial reliance on purported scientific expertise."

Reliance on purported scientific expertise that should have been obvious that it was crap.

[Rev. Arthur L. Kirkland]

What do you think about a Supreme Court justice including junk science in her opinion?

What does the Volokh Conspiracy (with its carefully cultivated audience of old-timey right-wingers who dislike modern inclusivity) think about a litigant submitting an apparently fictitious document in a Supreme Court case?

It appears the Volokh Conspiracy doesn't find that as interesting as this issue Prof. Bernstein has highlighted.

I hope no one infers that bigotry (the affidavit was signed by and submitted on behalf of a bigot) is involved; the Volokh Conspiracy really dislikes it when people wonder about why this white, male, right-wing blog seems to flatter obsolete bigots quite so eagerly (or publishes vile racial slurs quite so regularly -- today, for example -- although usually with plausible deniability).

[Frank Drackman]

Arthur, you're supposed to be "Kinder/Gentler? not "more Ass-hole-olic"

[Scooter]

NPC Alert.

[Rev. Arthur L. Kirkland]

What is remotely kind or gentle about a blog that habitually publishes vile racial slurs to entertain a carefully cultivated audience of disgusting bigots?

[Scooter]

NPC Alert.

[Rev. Arthur L. Kirkland]

How many vile racial slurs did the Volokh Conspiracy -- a white, male, bigot-embracing conservative blog -- publish today (so far)?

Four? Six? Eight? Ten?

That's just one day of bigotry at the Volokh Conspiracy.

The Conspirators and their fans get a tingle from each and every racial, homophobic, xenophobic, misogynistic, antisemitic, and Islamophobic slur this blog publishes. That tells you all you need to know about this white, male, "often libertarian" blog.

[Religion and Politics, my life]

Look, Biden gave a whole speech on the OMNIcron virus. Bottom 10 of his law class, might not have had a real science class his whole life.