One of the really knotty problems with our public debates is that we often are having two or three debates at the same time, and it is easy to get confused about which question is actually in dispute at any given moment. 

Take, for example, the recent debate about racial preferences in college admissions: The question before the Supreme Court was only a legal one—not that you’d know it from the campaign-style rhetoric of Ketanji Brown Jackson or Sonia Sotomayor!—to wit, whether the law permits what Harvard and the University of North Carolina were doing, or whether that amounted to unlawful racial discrimination. The majority of the Supreme Court rightly found that this racial discrimination was unlawful. A second question—an unrelated question from the point of view of a Supreme Court justice who is actually doing his or her job instead of trying to act as an unelected legislator—is whether racial-preference policies such as those that had been implemented at Harvard are good policies. A third question—never quite explicitly discussed—has to do with “legal consequentialism,” the notion (which has official legal standing in some countries, such as Brazil) that legal questions per se should be made subordinate to utilitarian calculation. As the Brazilian statute puts it, “a decision shall not be made based on abstract legal values without considering the practical consequences of the decision.”

The consequentialist point of view is an invitation to conflate the question of what the law actually says with the separate question of what the law ought—according to … somebody—to say. Justice Jackson’s remarks about the affirmative action cases offered an illuminating case of vulgar consequentialism. Never mind the law, she insisted, affirmative action is a policy that “saves lives.” For example, she noted, the survival rate for high-risk black newborns is more than double for those with black physicians than for those with non-black physicians. That is an extraordinary claim, one that is interesting in that it is transparently untrue and preposterous on its face. African American newborns do, indeed, have higher infant-mortality rates than do those of other races, but the overall rate of infant mortality among black newborns is 894 per 100,000, a survival rate just a little above 99 percent. (Hooray for that worst health care system in the developed world.) The only way the survival rate could double for newborns under the care of black physicians would be if the survival rate were less than 50 percent—as a mathematical matter, the survival rate necessarily tops out at 100 percent. 

The research Justice Jackson cited does not say what she says it says, and, given her misunderstanding of it, one suspects that she did not read the paper at all but instead read an amicus brief based on this ideologically distorted (and, on some points, originally erroneous) report in the Washington Post. Ted Frank, writing in the Wall Street Journal, takes this nonsense apart in a very precise and easily understood way.