Bouchie: Court Dissent Based on Factual Error

July 19, 2023

by Tanner Bouchie

The United States Supreme Court has a history of deciding questions of Equal Protection based on social and psychological studies. Studies, however, are often poorly designed and misrepresented by litigants. Appellate judges are especially poorly situated to evaluate those studies to determine the facts of a case at hand. The Court has allowed legal uncertainty, decades of unnecessary litigation, and embarrassing gaffes among its members by deciding cases by studies at the expense of constitutional principles.

In her recent dissenting opinion in Students for Fair Admissions vs. University of North Carolina (SFFA), Justice Ketanji Brown-Jackson claimed, “[f]or high-risk black newborns, having a black physician more than doubles the likelihood that the baby will live, and not die.”

Judge Jackson apparently lifted the claim from a brief submitted by The Association of American Medical Colleges (AAMC), the cluster of experts who administer the Medical College Admission Test, or MCAT, to evaluate students’ suitability for medical school. AAMC stated, “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.” To support this claim, AAMC cited a study that examined newborn mortality rates in Florida between 1992 and 2015. During that time, 99.5549 percent of black babies born with white attending physicians survived. For AAMC’s claim, parroted by Jackson, to be true, at least 199 percent of black babies would have needed to survive with black physicians. In fact, 99.6839 percent of black babies born with a black attending physician survived, an observed difference of 0.129 percent compared with white physicians.

Jackson, Justices Sotomayor and Kagan (who joined Jackson’s opinion), their clerks, and AAMC apparently failed to realize that the unbelievable and mathematically impossible statistic was false.

After the Court decided SFFA, AAMC extraordinarily submitted a letter to the Court in which it admitted the error from its brief. Even the correction letter falsely described the study’s finding as, “the mortality rate for Black newborns, as compared with White newborns, decreased more than half when under the supervision of a Black physician.” The study observed 894 deaths per 100,000 black newborns and 290 deaths per 100,000 white newborns, a difference of 604 deaths per 100,000. The study observed a difference of 257 deaths per 100,000 births for black newborns under the care of black physicians vs. white physicians. 257 is less than half of 604, so AAMC again misstated the claim of the study. Not a great look for the experts who purportedly safeguard the initial stages of qualification for the medical profession.

AAMC may have embraced a reckless misunderstanding of the study because it was familiar with the Court’s prior reliance on social and psychological studies to decide Equal Protection cases.

The Equal Protection Clause says that “[no State shall] deny to any person within its jurisdiction the equal protection of the laws.” Yet, a 7-1 majority had held in Plessy vs. Ferguson that racial segregation statutes did not violate the Fourteenth Amendment if the facilities offered to each race were equal in quality.

Justice John Marshall Harlan vigorously dissented from the majority opinion in Plessy, writing:

“Our Constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

In Brown vs. Board of Education of Topeka, the Supreme Court could have overturned the holding of Plessy. Yet, Chief Justice Warren, writing for a unanimous court, conspicuously declined to adopt the reasoning of Harlan’s dissent and downplayed the importance of the original meaning of the Equal Protection Clause, claiming that “we cannot turn the clock back to 1868, when the Amendment was adopted.” He opined that the intentions of those who drafted the Fourteenth Amendment were, at best, “inconclusive,” saying:

“The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty.”

Instead of holding that the Equal Protection Clause prohibits States from engaging in any racial discrimination, Warren determined that racial segregation deprives students of educational opportunities because it “generates a feeling of inferiority as to [minority students’] status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”

The Court’s determination depended on one of the published conclusions of a psychological study known as The Doll Experiment by Kenneth and Mamie Clark in which black children as young as 3-years-old demonstrated a preference for white dolls over black dolls. Thurgood Marshall, the lead litigator for the NAACP, cited the study in his argument for Brown.

Popular myth notwithstanding, the Court in Brown essentially affirmed the legal reasoning of Plessy by saying:

“We conclude that in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated … are … deprived of the equal protection … guaranteed by the 14th Amendment.”

In other words, “separate but equal” remained the framework, but the Court held that separate educational facilities were inherently unequal because social science said so. “Whatever may have been the extent of psychological knowledge at the time of Plessy vs. Ferguson, this finding is amply supported by modern authority,” Warren wrote.

The Court’s reliance in Brown on social science at the expense of examining the meaning of the law emboldened States to engage in affirmative action practices in which States applied different standards to people based on racial classifications. State universities often racially discriminated among applicants. For decades, the Court repeatedly opined that the affirmative action admission schemes did not violate the Equal Protection Clause.

The continued legal ambiguity regarding racial discrimination poisoned both public discourse and public institutions. President Biden tainted public perception of Jackson’s eventual appointment by pledging prior to election that he would nominate a black woman. By his pledge, Biden marginalized the legitimate qualifications that any appointee might have held.

Ilya Shapiro, then-incoming executive director and senior lecturer at the Georgetown Center for the Constitution, noted the way the President had insulted his eventual nominee, tweeting:

“Objectively best pick for Biden is Sri Srinivasan, who is solid prog & vs smart. Even has identity politics benefit of being first Asian (Indian) American. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?”

In a follow-up tweet, Shapiro wrote:

“Because Biden said he’s only consider [sic] black women for SCOTUS, his nominee will always have an asterisk attached. Fitting that the Court takes up affirmative action next term.”

In 2013, President Obama nominated Sri Srinivasan to serve on the D.C. Circuit. The Senate confirmed Srinivasan’s appointment by a vote of 97-0. Srinivasan now serves as Chief Judge of the D.C. Circuit and teaches courses at Georgetown.

In response to his tweets, Shapiro was subjected to threats of violence and a four-month university investigation that failed to find that his speech fit within accepted bounds of conduct. Shapiro voluntarily resigned his post after his disgust at the process.

In SFFA, the Court qualified its opinion on affirmative action, holding, in part, that certain admissions policies violate the Equal Protection Clause where they lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. Chief Justice Roberts’s majority opinion decided the case on narrow grounds, not by holding that the Fourteenth Amendment prohibits States from engaging in any racial discrimination.

Had the Court in Brown or any case until SFFA held that the Equal Protection Clause itself prohibits States from engaging in any racial discrimination, public universities might have long ago abandoned racial classifications for admissions and our politics today might have less tolerance for odious presidential pronouncements of racial preference. SFFA, though it falls short of Justice Harlan’s reasoning from his dissent in Plessy, is a small and meaningful pivot toward greater enforcement of the Equal Protection Clause. The reasoning of SFFA, however, guarantees future cases testing the boundaries within which the Court will allow racial discrimination. In those cases, the Court will once again grapple with whether to determine the meaning of the Equal Protection Clause or to once again tweak its complicated framework for deciding Equal Protection cases.

Tanner Bouchie, an attorney, is a lifelong Hoosier and a member of the Indiana Policy Review Foundation residing with his family in Knox County. He is in-house counsel for a pharmacy benefits manager focusing on compliance issues.


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