Press release judicial decisions

Some of the more substantive articles exploring the decision and consequences of overturning the affirmative action regime.  Most the commentary has been distressingly platitudinous and rebarbative but these writers lift the bar a bit.  

I was startled a few days ago to hear NPR advertising one of their reports in which they were going to explore whether a focus on social class could achieve the same objectives, but legally, as affirmative action.  I was startled because I have always advocated that we focus on helping those in poverty or close to poverty rather than focus on skin color.  

In the event, the reportage was true to form.  Their conclusion was that focusing on class was insufficient and we really needed to discriminate based on race.  What a bunch of racist sinners.  

The Affirmative Action Illusion - Jason L. Riley

In his concurring opinion, Justice Clarence Thomas chides Jackson for building her argument on racial determinism. She uses “broad observations about statistical relationships between race and select measures of health, wealth and well-being to label all blacks as victims,” writes Thomas. “Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood.”

Just as noteworthy, Thomas also takes the opportunity to push back against the notion that racial favoritism in college admissions and racial diversity on campus are prerequisites for black upward mobility. He uses the experience of students at historically black colleges and universities (HBCUs), which don’t use racial preferences in admissions, to illustrate his point. Citing studies done by the National Science Foundation and the United Negro College Fund, Thomas notes that, though most black college students don’t attend HBCUs, these schools are punching well above their weight in terms of turning out black professionals.

“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,’” writes Thomas. He references studies that show HBCUs produce 40 percent of all black engineers, 80 percent of black judges, and half of all black physicians and lawyers. “In fact,” writes Thomas, “Xavier University, an HBCU with only a small percentage of white students, has had better success at helping low-income students move into the middle class than Harvard has.”

Thomas’s point is that the racial preferences so treasured by liberal elites are not only unconstitutional but also counterproductive. They mismatch students with schools that recruit minorities for window dressing and then fail to graduate them in a timely manner or in the majors they initially wanted to pursue. Many bright black students who could have graduated from Xavier with a degree in engineering were instead lured to Duke, where they struggled academically, perhaps switched to a softer discipline, or simply flunked out. The upshot has been fewer black mathematicians, lawyers, and physicians than we would have had in the absence of race-based admissions.

Crunching the Numbers: Does Justice Jackson’s Dissent on Affirmative Action Add Up? - Jonathan Turley.

It is also frustrating that, as a litigator, you fight over every entry into the record at trial. However, 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. It produces more of a legislative environment for the court as different parties insert data to support their own view of what is a better policy or more serious social problem. There is only a limited ability of parties to challenge such data given limits on time and space in briefing.

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.

Justice Jackson’s Incredible Statistic - Ted Frank.

Even Supreme Court justices are known to be gullible. 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.”

A moment’s thought should be enough to realize that this claim is wildly implausible. Imagine if 40% of black newborns died—thousands of dead infants every week. But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%.

How could Justice Jackson make such an innumerate mistake? A footnote cites a friend-of-the-court brief by the Association of American Medical Colleges, which makes the same claim in almost identical language. It, in turn, refers to a 2020 study whose lead author is Brad Greenwood, a professor at the George Mason University School of Business.

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).

The AAMC brief either misunderstood the paper or invented the statistic. (It isn’t saved by the adjective “high-risk,” which doesn’t appear and isn’t measured in Greenwood’s paper.)

I constantly rail against press release journalism, the practice of journalists lightly rewriting a press release in order to create "content" quickly and cheaply without actually doing any real research or reporting and becoming entirely dependent on the quality of the original press release, which often proves dubious.  It is an industry practice conjured by brutal economic realities but also guaranteed to fill the public discourse with cognitive pollution.

And it appears from the various observers to be what has happened with Justice Jackson's decision.  Her clerks relied on studies without understanding them and then incorporated the misunderstood conclusions of the studies into draft of Jackson's dissent without her in turn capturing the errors.  

Press release judicial decision making as it were.