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June 30, 2023

Justice Jackson’s emotional dissent relied on an objectively flawed study

By Andrea Widburg

For decades, leftist Supreme Court justices have abandoned legal analysis and relied on questionable “science” and “sociology” to prop up their unconstitutional amendments to the Constitution. Justice Ketanji Brown Jackson continued that dishonorable tradition in her dissent to Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. It’s a perfect reminder of how far leftists will deviate from the law to control the culture.

In 1973, Roe v. Wade presented a simple question: Does the Constitution contain a federal right to abortion? The simple answer was “no,” and that being the case, the issue remained one for the states to determine (as the Dobbs court finally correctly decided). Instead, Justice Blackmun offered a long treatise about fetal development, carefully parsing an infant’s right to life by counting the weeks it had been alive. This wasn’t law; this was nonsense.

Roe v. Wade should have returned the abortion question to the states so that the people could have their say. By ripping it from the people’s hands and creating a false constitutional principle, the Supreme Court created a cultural and moral schism that still resonates in America.

In 2015, Obergefell v. Hodges presented a simple question: Does the Constitution contain a federal right to same-sex marriage? The simple answer, again, was no. And if the Founders had ever contemplated same-sex marriage, these sophisticated men who fully understood homosexuality’s existence would have fallen on the floor laughing. They would then have pointed out that pretending to find such a right in the Constitution would create a head-on collision between the explicit right to practice religion without government interference and a plucked-from-the-air decision that gives federal and state governments the right to force religious people and institutions to support same-sex marriage…or else.

Image: Ketanji Brown Jackson (cropped). YouTube screen grab.

Nevertheless, Justice Kennedy wrote a heartfelt romance, all about people loving people being the happiest people… Well, something like that. Let’s just say that his brief was long on emotion and short on law. The Court, once again, usurped the will of the people through a unilateral and unconstitutional amendment process.

Thankfully, in Students for Fair Admissions, the Supreme Court’s leftists did not get the chance to abandon the constitutional question and, instead, use irrelevant arguments to create a constitutional right to discrimination. Because of the Sotomayor and Jackson dissents, we know that’s exactly what they would have done. Jackson, especially, doesn’t understand that her job is whether the Constitution authorizes a specific behavior, preferring, instead, to scream (in legal terms), “This is so unfair.”

It seems appropriate, then, that Jackson’s existential screed relied in part on a faulty study about black infant mortality. Ted Frank, an attorney at the Hamilton Lincoln Law Institute, noticed that Jackson claimed that, irrespective of the actual Constitution, the court should essentially legislate affirmative action or black babies will die. “For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.”

Aside from being irrelevant to the constitutional question, that’s just not true. The statement is mathematically wrong. More significantly, the study cited fails to recognize that white doctors are a majority in Neonatal Intensive Care Units where the risk of infant death is higher regardless of race:

In the earlier Tweet, Frank carefully explains why the study is flawed:

The Supreme Court has a very narrow lane: Does the Constitution control and, if so, how? If the American people dislike the constitutional answer, there is an amendment process—one that, significantly, gives them a loud voice. However, for the last 100 years, leftist Supreme Court justices have been legislating from the bench, effectively amending the Constitution as they go. Given the chance, Justice Jackson would have done the same, relying on a mixture of emotion and lies, to turn the Constitution into a document of racial oppression.

In 1857, the Supreme Court’s race-based decision in Dred Scott v. Sanford was one of the causes of our bloody Civil War. In 1896, despite the people saying explicitly in the 14th Amendment that race could not divide Americans, the Supreme Court’s race-based decision in Plessy v. Ferguson led to the horrors of Jim Crow. You’d think blacks would want to keep race out of the Constitution but, like generations of Democrats before them, they are heartbroken that the Constitution is a colorblind document.

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