Francis Menton (Manhattan Contrarian) expands on his earlier explanation of how to think like a “liberal” Supreme Court justice. In summary:
There is nothing complicated about the thinking of a liberal Supreme Court justice…. [T]he heart of the opinion is an appeal to fear and/or guilt, completely divorced from anything about the law. The basic argument is that because of either some looming menace, or your sins, or both, you must cede infinite power to your betters to run things outside the constitutional order. The law? Somewhere in the thousands of statutes and precedents out there, or maybe just from our superior moral compass, we can find something to serve as a pretext to support our desired result. The desired result is always more power to the bureaucrats and/or liberal elites.
Menton illustrates the formula by summarizing the dissents of “liberal” justices in some high-profile cases.
Justice (sic) Ketanji Brown Jackson’s dissent in the recently decided case of Students for Fair Admissions v. Harvard. The majority in that case (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) ruled that universities may not make admissions decisions base on race. CJ Roberts’s majority opinion is quite clear on the point:
While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit….
That is a remarkable view of the judicial role—remarkably wrong….
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints. We have never permitted admissions programs to work in that way, and we will not do so today….
At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universitiesfrom considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise…. But, despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today…. A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race.
Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.
Returning to Justice (sic) Jackson’s dissent, Menton notes this risible lapse in her defense of pro-black racism:
For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.
[Jackson’s] 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%….
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.
Third, even if Jackson could describe the results of the study accurately and even if those results were credible, the finding would not support the claim that we should employ racial preferences in medical school admissions.
As a practical matter, increasing the number of black doctors so that every black newborn could be ensured to have one would require significant dilution in the quality of doctors so that the modest benefit claimed in the study would likely be swamped by the harm of less capable physicians.
And so we arrive at the heart of the issue. “Underrepresentation” of blacks in colleges, universities, and professions that require high intelligence isn’t caused by racism. Neither is the “wealth and health gap” to which The New York Times devoted considerable space earlier this year.
Income, wealth, and health are highly correlated with intelligence — though less highly correlated than they would be in the absence of state-sponsored and state-condoned discrimination in favor of blacks.
As Dov Fischer says,
the same disadvantaged groups who today rely on blaming instead of self-help will then be at the same exact rung on the social order that they are today, just as 50 years of racism-free society and Great Society “entitlements” have not accomplished equality of results today, even as newcomers from Asia entered this country these past 50 and 60 years and leap-frogged those already here.
Blacks, on the whole, are not where they are because of whites and Asians (the real victim group in SFFA v. Harvard), but because of their genes, and because of a culture that reinforces their genetic inheritance.
The majority of the Supreme Court is undoubtedly aware of the disparity that underlies affirmative action. But being good judges who base their decisions on the law, they do not appeal to that disparity. The law of the land is enough for them, as it should be.