Mary Anne Franks


The Supreme Court as Death Panel: The Necropolitics of Bruen and Dobbs

Mary Anne Franks

Two decisions in 2022, issued only a day apart, represent a dramatic and deadly escalation of the Supreme Court’s politicized jurisprudence. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court declared that the Constitution has always protected a right to armed self-defense in public as well as in the home. In Dobbs v. Jackson Women’s Health Organization, it decreed that the Constitution has never protected a right against forced childbirth. What unites the two cases, beyond the radical political extremism displayed by the conservative Supreme Court majority, the indefensibly selective and incoherent use of history, and the broad rejection of longstanding precedent, is the full transformation of American constitutional law into what Achille Mbembe calls “necropolitics.” At the heart of the Bruen and Dobbs decisions is nothing less than life and death, and specifically the question of who gets to decide who lives and who dies. Expanding the right to guns means expanding white men’s use of deadly force against women and racial minorities. Eliminating the right to abortion means leaving women at the mercy of the death, injury, and other suffering inflicted by forced childbirth. Taken together, the two cases demonstrate that the Supreme Court has embraced the use of the Constitution as a tool of racial patriarchy.