Lesbian Hauntology and Precedential Death

This paper offers a lesbian hauntology of legal precedent by examining how the Supreme Court’s precedent-setting decision on inmates’ rights in Turner v. Safley (1987) is haunted by the errant paths of queer women in state reformatories in the early twentieth century. The “harmful intimacies” between women across lines of race and class in Progressive-era reformatories, I argue, are the unspoken and unacknowledged presence at the heart of the “penological interests” that the Turner court later put at the center of its precedent-setting test. First, I turn to Critical Race Theorists to argue that the concept of precedent generates a sense of settled reality out of a legal fiction, and that it does so by enlivening certain relevant “facts” about the past that must come to bear on the lived reality of subjects in the present. In so doing, I argue, precedent exerts a kind of “undue influence of communications from the dead” (Dayan 2011, 7). Next, I analyze the central arguments in Turner through the lens of two high-profile accounts of same-sex sex in reformatories in the early twentieth century. This archive reveals that concerns about the habit-forming and solidarity-building same-sex intimacies across racial lines would later become the justification for new penal technologies like segregation, surveillance, and investments in the infrastructure of the prison. Finally, I conclude that while they are seldom named in precedential reasoning, queer women are paradigmatic subjects of legal theory: it was queer women’s “incorrigibility” that forms the most basic conceptual building blocks of the “penological interests” that underpin modern prisons and prison administration, on the one hand, and legal standards for assessing the constitutional rights of inmates that would eventually become enshrined in cases like Turner, on the other.