Pornography used to make its way to the Supreme Court regularly.

In a 1964 case, Justice Potter Stewart had one of the most colorful lines ever in a Supreme Court opinion, despite or perhaps because his line was not particularly scholarly. It was a case where the Court struggled to define “hard-core” pornography that was not protected by the First Amendment versus soft core stuff that was.

The Justices were reluctant to admit to any expertise in the subject. Stewart, however, declared in his concurring opinion “I know it when I see it.”

In that particular case, Stewart didn’t see it; he said the movie at issue was not pornographic. He later expressed regret for “I know [pornography] when I see it” being his most famous line. But he could have done worse in the annals of history. Justice Roger Taney is remembered for stupidly saying in the 1857 Dred Scott decision that Blacks were “altogether unfit to associate with the white race.”

Which brings us to Justice Ketanji Onyika Brown Jackson, the Court’s newest member who is an accomplished woman that happens to be Black. (These days you’re supposed to notice and applaud that, unless they’re politically conservative, and she’s not.)

In Justice Jackson’s senate confirmation hearing, she was asked “Can you define the word woman?”

She answered “I can’t . . . I’m not a biologist.”

I’m hoping that in her heart of hearts she was thinking along the lines of Justice Stewart. I’m hoping she knows women when she sees them even if she can’t define them. And I’m further hoping she sees a woman in the mirror every morning. Because whether she’s a real woman is about to be tested.

Jackson made an embarrassing mistake of fact in her dissent in the Court’s recent case striking down Harvard’s long-standing practice of discriminating against whites and especially Asians vis à vis Blacks in admissions. Harvard has required Asians to score about 450 points higher than Blacks on the SAT, and has required whites to score about 310 points higher than Blacks.

Jackson thinks Harvard’s policy was a good thing because it got more Blacks into Harvard. She’s right that it got more Blacks into Harvard. That was the purpose of the policy. But most Americans, including most Blacks, think it was unfair to Asians and whites.

Those are moral judgments upon which reasonable persons can differ (though my personal moral judgment is that racial discrimination is immoral regardless of which way it goes) and legal judgments for which we have a Constitution and a Supreme Court to say what it says.

Jackson’s dissenting opinion did discuss morality and legality, but she also chose to interpose a practical concern. Cribbing from a “friend of the Court” brief filed by a non-party, she contended that the survival rate of Black babies under the care of Black pediatricians was double their survival rate under the care of white pediatricians. The implication was that white pediatricians care for Black babies negligently.

And so, Jackson’s reasoning went, we should favor Black applicants to medical school in order to get more Black doctors to double the survival rate of Black babies.

But Jackson’s data are preposterously false. The survival rate of Black babies with white pediatricians is already 99.6% which is nearly the same as the survival rate for white babies. For the Black baby survival rate of 99.6% to double, it would have to go to 199.2%.

It is obvious to anyone, including Jackson if she’d thought about it for a moment, that survival rates of greater than 100% are not possible, at least not in this world.

Jackson has been roundly criticized for her sloppy mistake, including in a devastating piece in the Wall Street Journal. Even the non-party that submitted the “friend of the Court” brief from which Jackson cribbed has filed a letter with the Court admitting that their language “warrants clarification.”

Here’s where it gets interesting procedurally in a way that will reflect well or badly on Jackson.

The Court has issued their decision and their multiple opinions, but their opinions are not technically final published ones. They are called “slip opinions.” In the old days, slip opinions were something like a pamphlet that was slipped into the back of the hard-cover bound volumes or into soft-sided volumes containing the Court’s earlier decisions. When enough slip opinions had accumulated, they were physically gathered up and sent off to the printer to be bound into their own new hard-cover volume.

In the final process of getting the opinions bound into hard-cover volumes, it is possible for the Court to correct typos and change words. On rare occasions, they even make changes of substance.

They can do this candidly with an explanation for the change, or they can do it quietly without drawing attention – though careful Court watchers are likely to notice anything of significance and will certainly notice if Jackson corrects this particular mistake.  

The process of a slip opinion becoming a final bound opinion still takes surprisingly long – sometimes years. Speed and technology are not the Court’s forte.  

So, here’s the question: Will Jackson be woman enough to admit her mistake (as the “friend of the Court” from whom she cribbed her language has) and correct it in the final bound opinion? If she does, will she note the correction, or just hope it flies under the conveniently unfocused radar of her media allies?

So far, she has said nothing. 

Glenn Beaton practiced law in the federal courts, including the Supreme Court.