Many judges can’t do basic math — not even Supreme Court justices. In their dissent advocating race-based affirmative action, the Supreme Court’s three progressive justices cited an obviously false statistic about the death rates of black babies. They gullibly cited the statistic, even though it was mathematically almost impossible, and had been debunked months before by people like Ted Frank, a member of the Supreme Court bar.
Jay Greene of the Heritage Foundation describes the error:
In her dissenting opinion to the Supreme Court’s decision to strike down racial preferences in university admissions, Justice Ketanji Brown Jackson managed to pull off a trifecta: She was factually incorrect in describing the results of a study that should not be believed, which wouldn’t provide practical support for her argument even if it were accurate and credible.
Jackson claimed that racial preferences were essential in admission to medical schools because more black doctors were needed to improve health outcomes for black patients.
Specifically, she wrote, “For high-risk black newborns, having a black physician more than doubles the likelihood that the baby will live, and not die.” That claim was taken from an amicus brief filed by the Association of American Medical Colleges, which in turn was referencing a study that appeared in the Proceedings of the National Academy of Sciences.
First, the study does not claim to find a doubling in survival rates for black newborns who have a black attending doctor. Instead, in its most fully specified model, it reports that 99.6839% of black babies born with a black attending physician survived compared with 99.5549% of black babies born with white attending physicians, a difference of 0.129%.
The survival rate of 99.6839% is not double 99.5549%.
The claim that survival rates for black newborns double when they have black physicians is just plain false. The fact that neither the Association of American Medical Colleges nor Jackson’s clerks could read and properly understand a medical study is an alarming indication for the current state of both medical and legal education.
Second, even if the results of the Proceedings of the National Academy of Sciences study were accurately described, they should not be believed. The study’s comparison of death rates for newborns who have doctors of different races does not take into account the fact that black newborns have a greater likelihood of serious medical complications and the attending physicians assigned to treat those more challenging cases are likely to be white.
For example, the study does control for whether newborns are low weight (less than 2,500 grams), but does not control for whether they are very low weight (less than 1,500 grams). Black newborns are almost three times as likely as white newborns to weigh less than 1,500 grams.
Doctors assigned to treat very low-weight babies are more likely to be specialists, rather than regular pediatricians or family practitioners. Black doctors are significantly less likely to be found in those specialized fields.
More than 5% of pediatricians or family practice physicians are black, compared with 3.8% of neonatologists and pediatric cardiologists, and 1.8% of pediatric surgeons.
Rather than demonstrating the protective benefits of black newborns having black doctors, the Proceedings of the National Academy of Sciences study only documents that black newborns are more likely to have severe issues that increase their risk of infant mortality, and those severe cases are more likely to have white attending physicians because white doctors are more prevalent in the specialized fields that treat those complications.
The study provides no convincing evidence on whether black newborns with identical conditions would fare better, worse, or no differently with a black or white doctor.
Greene was debunking a false statistic cited by Justice Jackson in her June 29 dissent in Students for Fair Admissions v. President and Fellows of Harvard College. That dissent was joined in full by the Supreme Court’s two other progressive justices, Elena Kagan and Sonia Sotomayor.
As lawyer Ted Frank notes, the bogus statistic cited by Justice Jackson’s dissent was mathematically impossible, because there is no way to double the survival rate of black babies. Unless their survival rate were less than 50%, it could not be doubled without exceeding 100%, which is a mathematical impossibility. But even among low-weight black babies, the survival rate was way above 50%, even with white doctors, as the study actually showed. Even high-risk black babies have a survival rate vastly above 50%, regardless of the race of their doctor. Moreover, Frank notes, “The white docs aren’t seeing the same infants as the black docs. They’re more likely to get the NICU cases where all infants are less likely to survive, and study doesn’t control for that.” As the National Review points out, “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.” If the survival rate of a black baby fell from 99.96% to 99.91%, that would roughly double the death rate, but the survival rate would barely increase. Non-white physicians have said that the study does not show any racial bias in medicine against blacks.
The fact that this bogus statistic got cited by a Supreme Court justice has already led to it being cited as if it were true, by many progressive journalists. The Washington Post’s Ruth Marcus cited it in a July 30 op-ed. She wrote, “Consider this sobering point, from a friend-of-the-court brief filed by the Association of American Medical Colleges: ‘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.'” But the study the friend-of-the-court brief cited actually stated that well over 99 percent of black babies without black physicians survived.
There is no statistic too stupid or mathematically impossible to be believed by lawyers and judges. When Justices O’Connor and Brennan cited the mathematically impossible claim from Lenore Weitzman’s The Divorce Revolution that men’s living standard goes up 42% after a divorce, while women’s goes down by 73% (which would have been mathematically impossible even if all divorced men were deadbeat dads, given women’s substantial labor force participation rates), it got cited by over 200 lower court rulings, even though the statistic’s creator, Lenore Weitzman, later admitted the statistic was wrong. Her statistic was debunked almost as soon as it was publicized, as John Stossel and lawyer Ronald Henry have noted. Indeed, Weitzman herself admitted that the statistic was erroneous in a 1996 Associated Press story (See Associated Press, “Study Goofed on Gap in Post-Divorce Standard of Living,” MANCHESTER UNION LEADER, May 17, 1996). And it was in fact quite wrong. The reality was that both men and women usually had mild declines in standards of living after a divorce, because it is harder to pay for two separate households than one, as economist Sanford Braver found in his study of the economic effects of divorce in the late 1980s.
But some legislators believed the bogus statistic about women’s living standard after a divorce, and relied on it to increase state child-support guidelines (resulting in large amounts of uncollectible child support obligations, as some low-income men were ordered to pay more than they could possibly pay in child support).
