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95-266.ZD Dissenting

  ---------- Forwarded message ----------
  Date: 13 Jun 1996 15:33:15 GMT
  From: courts@usenet.ins.cwru.edu
  To: jbrady@freenet.columbus.oh.us
  Subject: 95-266.ZD Dissenting
  No. 95-266
  CARRIE JAFFEE, special administrator for
  RICKY ALLEN, Sr., deceased, PETITIONER v.
  on writ of certiorari to the united states court
  of appeals for the seventh circuit
  [June 13, 1996]
    Justice Scalia, with whom The Chief Justice  joins
  as to Part III, dissenting.
    The Court has discussed at some length the benefit
  that will be purchased by creation of the evidentiary
  privilege in this case: the encouragement of psychoana-
  lytic counseling.  It has not mentioned the purchase
  price: occasional injustice.  That is the cost of every rule
  which excludes reliable and probative evidence-or at
  least every one categorical enough to achieve its an-
  nounced policy objective.  In the case of some of these
  rules, such as the one excluding confessions that have
  not been properly -Mirandized,- see Miranda v. Arizona,
  384 U. S. 436 (1966), the victim of the injustice is
  always the impersonal State or the faceless -public at
  large.-  For the rule proposed here, the victim is more
  likely to be some individual who is prevented from
  proving a valid claim-or (worse still) prevented from
  establishing a valid defense.  The latter is particularly
  unpalatable for those who love justice, because it causes
  the courts of law not merely to let stand a wrong, but
  to become themselves the instruments of wrong.
    In the past, this Court has well understood that the
  particular value the courts are distinctively charged with
  preserving-justice-is severely harmed by contravention
  of -the fundamental principle that `-the public . . . has
  a right to every man's evidence.-'-  Trammel v. United
  States, 445 U. S. 40, 50 (1980) (citation omitted). 
  Testimonial privileges, it has said, -are not lightly
  created nor expansively construed, for they are in
  derogation of the search for truth.-  United States v.
  Nixon, 418 U. S. 683, 710 (1974) (emphasis added). 
  Adherence to that principle has caused us, in the Rule
  501 cases we have considered to date, to reject new
  privileges, see University of Pennsylvania v. EEOC, 493
  U. S. 182 (1990) (privilege against disclosure of academic
  peer review materials); United States v. Gillock, 445
  U. S. 360 (1980) (privilege against disclosure of -legisla-
  tive acts- by member of state legislature), and even to
  construe narrowly the scope of existing privileges, see,
  e.g., United States v. Zolin, 491 U. S. 554, 568-570
  (1989) (permitting in camera review of documents
  alleged to come within crime-fraud exception to attorney-
  client privilege); Trammel, supra (holding that voluntary
  testimony by spouse is not covered by husband-wife
  privilege).  The Court today ignores this traditional
  judicial preference for the truth, and ends up creating a
  privilege that is new, vast, and ill-defined.  I respectfully
    The case before us involves confidential communica-
  tions made by a police officer to a state-licensed clinical
  social worker in the course of psychotherapeutic counsel-
  ing.  Before proceeding to a legal analysis of the case, I
  must observe that the Court makes its task deceptively
  simple by the manner in which it proceeds.  It begins by
  characterizing the issue as -whether it is appropriate
  for federal courts to recognize a `psychotherapist privi-
  lege,'- ante, at 1, and devotes almost all of its opinion
  to that question.  Having answered that question (to its
  satisfaction) in the affirmative, it then devotes less than
  a page of text to answering in the affirmative the small
  remaining question whether -the federal privilege should
  also extend to confidential communications made to
  licensed social workers in the course of psychotherapy,-
  ante, at 13.
    Of course the prototypical evidentiary privilege analo-
  gous to the one asserted here-the lawyer-client privi-
  lege-is not identified by the broad area of advice-giving
  practiced by the person to whom the privileged commu-
  nication is given, but rather by the professional status
  of that person.  Hence, it seems a long step from a
  lawyer-client privilege to a tax advisor-client or accoun-
  tant-client privilege.  But if one recharacterizes it as a
  -legal advisor- privilege, the extension seems like the
  most natural thing in the world.  That is the illusion
  the Court has produced here: It first frames an overly
  general question (-Should there be a psychotherapist
  privilege?-) that can be answered in the negative only by
  excluding from protection office consultations with
  professional psychiatrists (i.e., doctors) and clinical
  psychologists.  And then, having answered that in the
  affirmative, it comes to the only question that the facts
  of this case present (-Should there be a social worker-
  client privilege with regard to psychotherapeutic counsel-
  ing?-) with the answer seemingly a foregone conclusion. 
  At that point, to conclude against the privilege one must
  subscribe to the difficult proposition, -Yes, there is a
  psychotherapist privilege, but not if the psychotherapist
  is a social worker.-
    Relegating the question actually posed by this case to
  an afterthought makes the impossible possible in a
  number of wonderful ways.  For example, it enables the
  Court to treat the Proposed Federal Rules of Evidence
  developed in 1972 by the Judicial Conference Advisory
  Committee as strong support for its holding, whereas
  they in fact counsel clearly and directly against it.  The
  Committee did indeed recommend a -psychotherapist
  privilege- of sorts; but more precisely, and more rele-
  vantly, it recommended a privilege for psychotherapy
  conducted by -a person authorized to practice medicine-
  or -a person licensed or certified as a psychologist,-
  Proposed Rule of Evidence 504, 56 F. R. D. 183, 240
  (1972), which is to say that it recommended against the
  privilege at issue here.  That condemnation is obscured,
  and even converted into an endorsement, by pushing a
  -psychotherapist privilege- into the center ring.  The
  Proposed Rule figures prominently in the Court's
  explanation of why that privilege deserves recognition,
  ante, at 12-13, and is ignored in the single page devoted
  to the sideshow which happens to be the issue presented
  for decision, ante, at 13-14.
    This is the most egregious and readily explainable
  example of how the Court's misdirection of its analysis
  makes the difficult seem easy; others will become
  apparent when I give the social-worker question the
  fuller consideration it deserves.  My initial point,
  however, is that the Court's very methodology-giving
  serious consideration only to the more general, and
  much easier, question-is in violation of our duty to
  proceed cautiously when erecting barriers between us
  and the truth.
    To say that the Court devotes the bulk of its opinion
  to the much easier question of psychotherapist-patient
  privilege is not to say that its answer to that question
  is convincing.  At bottom, the Court's decision to
  recognize such a privilege is based on its view that
  -successful [psychotherapeutic] treatment- serves -impor-
  tant private interests- (namely those of patients under-
  going psychotherapy) as well as the -public good- of
  -[t]he mental health of our citizenry.-  Ante, at 7-9.  I
  have no quarrel with these premises.  Effective psycho-
  therapy undoubtedly is beneficial to individuals with
  mental problems, and surely serves some larger social
  interest in maintaining a mentally stable society.  But
  merely mentioning these values does not answer the
  critical question: are they of such importance, and is the
  contribution of psychotherapy to them so distinctive, and
  is the application of normal evidentiary rules so destruc-
  tive to psychotherapy, as to justify making our federal
  courts occasional instruments of injustice?  On that
  central question I find the Court's analysis insufficiently
  convincing to satisfy the high standard we have set for
  rules that -are in derogation of the search for truth.- 
  Nixon, 418 U. S., at 710.
    When is it, one must wonder, that the psychotherapist
  came to play such an indispensable role in the mainte-
  nance of the citizenry's mental health?  For most of
  history, men and women have worked out their difficul-
  ties by talking to, inter alios, parents, siblings, best
  friends and bartenders-none of whom was awarded a
  privilege against testifying in court.  Ask the average
  citizen: Would your mental health be more significantly
  impaired by preventing you from seeing a psychothera-
  pist, or by preventing you from getting advice from your
  mom?  I have little doubt what the answer would be. 
  Yet there is no mother-child privilege.
    How likely is it that a person will be deterred from
  seeking psychological counseling, or from being com-
  pletely truthful in the course of such counseling, because
  of fear of later disclosure in litigation?  And even more
  pertinent to today's decision, to what extent will the
  evidentiary privilege reduce that deterrent?  The Court
  does not try to answer the first of these questions; and
  it cannot possibly have any notion of what the answer is
  to the second, since that depends entirely upon the scope
  of the privilege, which the Court amazingly finds it
  -neither necessary nor feasible to delineate,- ante, at 16. 
  If, for example, the psychotherapist can give the patient
  no more assurance than -A court will not be able to
  make me disclose what you tell me, unless you tell me
  about a harmful act,- I doubt whether there would be
  much benefit from the privilege at all.  That is not a
  fanciful example, at least with respect to extension of
  the psychotherapist privilege to social workers.  See Del.
  Code Ann., Tit. 24, 3913(2) (1987); Idaho Code
  54-3213(2) (1994).
    Even where it is certain that absence of the psycho-
  therapist privilege will inhibit disclosure of the infor-
  mation, it is not clear to me that that is an unaccept-
  able state of affairs.  Let us assume the very worst in
  the circumstances of the present case: that to be truthful
  about what was troubling her, the police officer who
  sought counseling would have to confess that she shot
  without reason, and wounded an innocent man.  If
  (again to assume the worst) such an act constituted the
  crime of negligent wounding under Illinois law, the
  officer would of course have the absolute right not to
  admit that she shot without reason in criminal court. 
  But I see no reason why she should be enabled both not
  to admit it in criminal court (as a good citizen should),
  and to get the benefits of psychotherapy by admitting it
  to a therapist who cannot tell anyone else.  And even
  less reason why she should be enabled to deny her guilt
  in the criminal trial-or in a civil trial for negli-
  gence-while yet obtaining the benefits of psychotherapy
  by confessing guilt to a social worker who cannot testify. 
  It seems to me entirely fair to say that if she wishes the
  benefits of telling the truth she must also accept the
  adverse consequences.  To be sure, in most cases the
  statements to the psychotherapist will be only margin-
  ally relevant, and one of the purposes of the privilege
  (though not one relied upon by the Court) may be
  simply to spare patients needless intrusion upon their
  privacy, and to spare psychotherapists needless expendi-
  ture of their time in deposition and trial.  But surely
  this can be achieved by means short of excluding even
  evidence that is of the most direct and conclusive effect.
    The Court confidently asserts that not much truth-
  finding capacity would be destroyed by the privilege
  anyway, since -[w]ithout a privilege, much of the desir-
  able evidence to which litigants such as petitioner seek
  access . . . is unlikely to come into being.-  Ante, at 10. 
  If that is so, how come psychotherapy got to be a
  thriving practice before the -psychotherapist privilege-
  was invented?  Were the patients paying money to lie to
  their analysts all those years?  Of course the evidence-
  generating effect of the privilege (if any) depends
  entirely upon its scope, which the Court steadfastly
  declines to consider.  And even if one assumes that
  scope to be the broadest possible, is it really true that
  most, or even many, of those who seek psychological
  counseling have the worry of litigation in the back of
  their minds?  I doubt that, and the Court provides no
  evidence to support it.
    The Court suggests one last policy justification: since
  psychotherapist privilege statutes exist in all the States,
  the failure to recognize a privilege in federal courts
  -would frustrate the purposes of the state legislation
  that was enacted to foster these confidential communica-
  tions.-  Ante, at 11.  This is a novel argument indeed. 
  A sort of inverse pre-emption: the truth-seeking func-
  tions of federal courts must be adjusted so as not to
  conflict with the policies of the States.  This reasoning
  cannot be squared with Gillock, which declined to
  recognize an evidentiary privilege for Tennessee legisla-
  tors in federal prosecutions, even though the Tennessee
  Constitution guaranteed it in state criminal proceedings. 
  Gillock, 445 U. S., at 368.  Moreover, since, as I shall
  discuss, state policies regarding the psychotherapist
  privilege vary considerably from State to State, no
  uniform federal policy can possibly honor most of them. 
  If furtherance of state policies is the name of the game,
  rules of privilege in federal courts should vary from
  State to State, - la Erie.
    The Court's failure to put forward a convincing
  justification of its own could perhaps be excused if it
  were relying upon the unanimous conclusion of state
  courts in the reasoned development of their common law. 
  It cannot do that, since no State has such a privilege
  apart from legislation.  What it relies upon, instead, is
  -the fact that all 50 States and the District of Columbia
  have [1] enacted into law [2] some form of psychothera-
  pist privilege.-  Ante, at 10 (emphasis added).  Let us
  consider both the verb and its object: The fact [1] that
  all 50 States have enacted this privilege argues not for,
  but against, our adopting the privilege judicially.  At
  best it suggests that the matter has been found not to
  lend itself to judicial treatment-perhaps because the
  pros and cons of adopting the privilege, or of giving it
  one or another shape, are not that clear; or perhaps
  because the rapidly evolving uses of psychotherapy
  demand a flexibility that only legislation can provide. 
  At worst it suggests that the privilege commends itself
  only to decisionmaking bodies in which reason is
  tempered, so to speak, by political pressure from
  organized interest groups (such as psychologists and
  social workers), and decisionmaking bodies that are not
  overwhelmingly concerned (as courts of law are and
  should be) with justice.  
    And the phrase [2] -some form of psychotherapist
  privilege- covers a multitude of difficulties.  The Court
  concedes that there is -divergence among the States
  concerning the types of therapy relationships protected
  and the exceptions recognized.-  Ante, at 12, n. 13.  To
  rest a newly announced federal common-law psychother-
  apist privilege, assertable from this day forward in all
  federal courts, upon -the States' unanimous judgment
  that some form of psychotherapist privilege is appropri-
  ate,- ibid. (emphasis added), is rather like announcing
  a new, immediately applicable, federal common law of
  torts, based upon the States' -unanimous judgment- that
  some form of tort law is appropriate.  In the one case as
  in the other, the state laws vary to such a degree that
  the parties and lower federal judges confronted by the
  new -common law- have barely a clue as to what its
  content might be.
    Turning from the general question that was not
  involved in this case to the specific one that is: The
  Court's conclusion that a social-worker psychotherapeutic
  privilege deserves recognition is even less persuasive.  In
  approaching this question, the fact that five of the state
  legislatures that have seen fit to enact -some form- of
  psychotherapist privilege have elected not to extend any
  form of privilege to social workers, see ante, at 15,
  n. 17, ought to give one pause.  So should the fact that
  the Judicial Conference Advisory Committee was
  similarly discriminating in its conferral of the proposed
  Rule 504 privilege, see supra.  The Court, however, has
  -no hesitation in concluding . . . that the federal
  privilege should also extend- to social workers, ante, at
  13-and goes on to prove that by polishing off the
  reasoned analysis with a topic sentence and two sen-
  tences of discussion, as follows (omitting citations and
  nongermane footnote):
  -The reasons for recognizing a privilege for treat-
  ment by psychiatrists and psychologists apply with
  equal force to treatment by a clinical social worker
  such as Karen Beyer.  Today, social workers provide
  a significant amount of mental health treatment. 
  Their clients often include the poor and those of
  modest means who could not afford the assistance of
  a psychiatrist or psychologist, but whose counseling
  sessions serve the same public goals.-  Ante, at
  So much for the rule that privileges are to be narrowly
    Of course this brief analysis-like the earlier, more
  extensive, discussion of the general psychotherapist
  privilege-contains no explanation of why the psycho-
  therapy provided by social workers is a public good of
  such transcendent importance as to be purchased at the
  price of occasional injustice.  Moreover, it considers only
  the respects in which social workers providing therapeu-
  tic services are similar to licensed psychiatrists and
  psychologists; not a word about the respects in which
  they are different.  A licensed psychiatrist or psycholo-
  gist is an expert in psychotherapy-and that may suffice
  (though I think it not so clear that this Court should
  make the judgment) to justify the use of extraordinary
  means to encourage counseling with him, as opposed to
  counseling with one's rabbi, minister, family or friends. 
  One must presume that a social worker does not bring
  this greatly heightened degree of skill to bear, which is
  alone a reason for not encouraging that consultation as
  generously.  Does a social worker bring to bear at least
  a significantly heightened degree of skill-more than a
  minister or rabbi, for example?  I have no idea, and
  neither does the Court.  The social worker in the
  present case, Karen Beyer, was a -licensed clinical social
  worker- in Illinois, App. 18, a job title whose training
  requirements consist of -master's degree in social work
  from an approved program,- and -3,000 hours of satisfac-
  tory, supervised clinical professional experience.-  Ill.
  Comp. Stat., ch. 225, 20/9 (1994).  It is not clear that
  the degree in social work requires any training in
  psychotherapy.  The -clinical professional experience-
  apparently will impart some such training, but only of
  the vaguest sort, judging from the Illinois Code's
  definition of -[c]linical social work practice,- viz., -the
  providing of mental health services for the evaluation,
  treatment, and prevention of mental and emotional
  disorders in individuals, families and groups based on
  knowledge and theory of psychosocial development,
  behavior, psychopathology, unconscious motivation,
  interpersonal relationships, and environmental stress.- 
  Ch. 225, 20/3(5).  But the rule the Court announces
  today-like the Illinois evidentiary privilege which that
  rule purports to respect, Ch. 225, 20/16.-is not
  limited to -licensed clinical social workers,- but includes
  all -licensed social workers.-  -Licensed social workers-
  may also provide -mental health services- as described
  in 20/3(5), so long as it is done under supervision of a
  licensed clinical social worker.  And the training require-
  ment for a -licensed social worker- consists of either (a)
  -a degree from a graduate program of social work-
  approved by the State, or (b) -a degree in social work
  from an undergraduate program- approved by the State,
  plus -3 years of supervised professional experience.-  Ch.
  225, 20/9A.  With due respect, it does not seem to me
  that any of this training is comparable in its rigor (or
  indeed in the precision of its subject) to the training of
  the other experts (lawyers) to whom this Court has
  accorded a privilege, or even of the experts (psychiatrists
  and psychologists) to whom the Advisory Committee and
  this Court proposed extension of a privilege in 1972.  Of
  course these are only Illinois' requirements for -social
  workers.-  Those of other States, for all we know, may
  be even less demanding.  Indeed, I am not even sure
  there is a nationally accepted definition of -social
  worker,- as there is of psychiatrist and psychologist.  It
  seems to me quite irresponsible to extend the so-called
  -psychotherapist privilege- to all licensed social workers,
  nationwide, without exploring these issues.
    Another critical distinction between psychiatrists and
  psychologists, on the one hand, and social workers, on
  the other, is that the former professionals, in their
  consultations with patients, do nothing but psychother-
  apy.  Social workers, on the other hand, interview people
  for a multitude of reasons.  The Illinois definition of
  -[l]icensed social worker,- for example, is as follows:
       -Licensed social worker- means a person who
  holds a license authorizing the practice of social
  work, which includes social services to individuals,
  groups or communities in any one or more of the
  fields of social casework, social group work, commu-
  nity organization for social welfare, social work
  research, social welfare administration or social
  work education.-  Ch. 225, 20/3(9).
  Thus, in applying the -social worker- variant of the
  -psychotherapist- privilege, it will be necessary to
  determine whether the information provided to the social
  worker was provided to him in his capacity as a psycho-
  therapist, or in his capacity as an administrator of social
  welfare, a community organizer, etc.  Worse still, if the
  privilege is to have its desired effect (and is not to
  mislead the client), it will presumably be necessary for
  the social caseworker to advise, as the conversation with
  his welfare client proceeds, which portions are privileged
  and which are not.
    Having concluded its three sentences of reasoned
  analysis, the Court then invokes, as it did when consid-
  ering the psychotherapist privilege, the -experience- of
  the States-once again an experience I consider irrele-
  vant (if not counter-indicative) because it consists
  entirely of legislation rather than common-law decision. 
  It says that -the vast majority of States explicitly extend
  a testimonial privilege to licensed social workers.-  Ante,
  at 15.  There are two elements of this impressive
  statistic, however, that the Court does not reveal.
    First-and utterly conclusive of the irrelevance of this
  supposed consensus to the question before us-the
  majority of the States that accord a privilege to social
  workers do not do so as a subpart of a -psychotherapist-
  privilege.  The privilege applies to all confidences
  imparted to social workers, and not just those provided
  in the course of psychotherapy.  In Oklahoma, for
  example, the social-worker-privilege statute prohibits a
  licensed social worker from disclosing, or being com-
  pelled to disclose, -any information acquired from
  persons consulting the licensed social worker in his or
  her professional capacity- (with certain exceptions to be
  discussed infra).  Okla. Stat., Tit. 59, 1261.6 (1991)
  (emphasis added).  The social worker's -professional
  capacity- is expansive, for the -practice of social work-
  in Oklahoma is defined as:
  -[T]he professional activity of helping individuals,
  groups, or communities enhance or restore their
  capacity for physical, social and economic functioning
  and the professional application of social work
  values, principles and techniques in areas such as
  clinical social work, social service administration,
  social planning, social work consultation and social
  work research to one or more of the following ends:
  Helping people obtain tangible services; counseling
  with individuals families and groups; helping com-
  munities or groups provide or improve social and
  health services; and participating in relevant social
  action.  The practice of social work requires knowl-
  edge of human development and behavior; of social
  economic and cultural institutions and forces; and of
  the interaction of all of these factors.  Social work
  practice includes the teaching of relevant subject
  matter and of conducting research into problems of
  human behavior and conflict.-  Tit. 59, 1250.1(2)
  Thus, in Oklahoma, as in most other States having a
  social-worker privilege, it is not a subpart or even a
  derivative of the psychotherapist privilege, but rather a
  piece of special legislation similar to that achieved by
  many other groups, from accountants, see, e.g., Miss.
  Code Ann. 73-33-16(2) (1995) (certified public accoun-
  tant -shall not be required by any court of this state to
  disclose, and shall not voluntarily disclose- client
  information), to private detectives, see, e.g., Mich. Comp.
  Laws 338.840 (1979) (-Any communications . . . fur-
  nished by a professional man or client to a [licensed
  private detective], or any information secured in connec-
  tion with an assignment for a client, shall be deemed
  privileged with the same authority and dignity as are
  other privileged communications recognized by the courts
  of this state-).  These social-worker statutes give no
  support, therefore, to the theory (importance of psycho-
  therapy) upon which the Court rests its disposition.
    Second, the Court does not reveal the enormous degree
  of disagreement among the States as to the scope of the
  privilege.  It concedes that the laws of four States are
  subject to such gaping exceptions that they are -`little
  better than no privilege at all,'- ante, at 16 and n. 18,
  so that they should more appropriately be categorized
  with the five States whose laws contradict the action
  taken today.  I would add another State to those whose
  privilege is illusory.  See Wash. Rev. Code 18.19.180
  (1994) (disclosure of information required -[i]n response
  to a subpoena from a court of law-).  In adopting any
  sort of a social worker privilege, then, the Court can at
  most claim that it is following the legislative -experi-
  ence- of 40 States, and contradicting the -experience- of
    But turning to those States that do have an apprecia-
  ble privilege of some sort, the diversity is vast.  In
  Illinois and Wisconsin, the social-worker privilege does
  not apply when the confidential information pertains to
  homicide, see Ill. Comp. Stat., ch. 740, 110/10(a)(9)
  (1994); Wis. Stat. 905.04(4)(d) (1993-1994), and in the
  District of Columbia when it pertains to any crime
  -inflicting injuries- upon persons, see D. C. Code
  14-307(a)(1) (1995).  In Missouri, the privilege is
  suspended as to information that pertains to a criminal
  act, see Mo. Rev. Stat. 337.636(2) (1994), and in Texas
  when the information is sought in any criminal prosecu-
  tion, compare Tex. Rule Civ. Evid. 510(d) with Tex. Rule
  Crim. Evid. 501 et seq.  In Kansas and Oklahoma, the
  privilege yields when the information pertains to
  -violations of any law,- see Kan. Stat. Ann.
  65-6315(a)(2) (Supp. 1990); Okla. Stat., Tit. 59,
  1261.6(2) (1991); in Indiana, when it reveals a -serious
  harmful act,- see Ind. Code Ann. 25-23.6-6-1(2) (1995);
  and in Delaware and Idaho, when it pertains to any
  -harmful act,- see Del. Code Ann., Tit. 24, 3913(2)
  (1987); Idaho Code 54-3213(2) (1994).  In Oregon, a
  state-employed social worker like Karen Beyer loses the
  privilege where her supervisor determines that her
  testimony -is necessary in the performance of the duty
  of the social worker as a public employee.-  See Ore.
  Rev. Stat. 40.250(5) (1991).  In South Carolina, a social
  worker is forced to disclose confidences -when required
  by statutory law or by court order for good cause shown
  to the extent that the patient's care and treatment or
  the nature and extent of his mental illness or emotional
  condition are reasonably at issue in a proceeding.-  See
  S. C. Code Ann. 19-11-95(D)(1) (Supp. 1995).  The
  majority of social-worker-privilege States declare the
  privilege inapplicable to information relating to child
  abuse.  And the States that do not fall into any of the
  above categories provide exceptions for commitment
  proceedings, for proceedings in which the patient relies
  on his mental or emotional condition as an element of
  his claim or defense, or for communications made in the
  course of a court-ordered examination of the mental or
  emotional condition of the patient.
    Thus, although the Court is technically correct that
  -the vast majority of States explicitly extend a testimo-
  nial privilege to licensed social workers,- ante, at 15,
  that uniformity exists only at the most superficial level. 
  No State has adopted the privilege without restriction;
  the nature of the restrictions varies enormously from
  jurisdiction to jurisdiction; and 10 States, I reiterate,
  effectively reject the privilege entirely.  It is fair to say
  that there is scant national consensus even as to the
  propriety of a social-worker psychotherapist privilege,
  and none whatever as to its appropriate scope.  In other
  words, the state laws to which the Court appeals for
  support demonstrate most convincingly that adoption of
  a social-worker psychotherapist privilege is a job for
                *      *      *
    The question before us today is not whether there
  should be an evidentiary privilege for social workers
  providing therapeutic services.  Perhaps there should. 
  But the question before us is whether (1) the need for
  that privilege is so clear, and (2) the desirable contours
  of that privilege are so evident, that it is appropriate for
  this Court to craft it in common-law fashion, under Rule
  501.  Even if we were writing on a clean slate, I think
  the answer to that question would be clear.  But given
  our extensive precedent to the effect that new privileges
  -in derogation of the search for truth- -are not lightly
  created,- United States v. Nixon, 418 U. S., at 710, the
  answer the Court gives today is inexplicable.
    In its consideration of this case, the Court was the
  beneficiary of no fewer than 14 amicus briefs supporting
  respondents, most of which came from such organiza-
  tions as the American Psychiatric Association, the
  American Psychoanalytic Association, the American
  Association of State Social Work Boards, the Employee
  Assistance Professionals Association, Inc., the American
  Counseling Association, and the National Association of
  Social Workers.  Not a single amicus brief was filed in
  support of petitioner.  That is no surprise.  There is no
  self-interested organization out there devoted to pursuit
  of the truth in the federal courts.  The expectation is,
  however, that this Court will have that interest promi-
  nently-indeed, primarily-in mind.  Today we have
  failed that expectation, and that responsibility.  It is no
  small matter to say that, in some cases, our federal
  courts will be the tools of injustice rather than unearth
  the truth where it is available to be found.  The com-
  mon law has identified a few instances where that is
  tolerable.  Perhaps Congress may conclude that it is also
  tolerable for the purpose of encouraging psychotherapy
  by social workers.  But that conclusion assuredly does
  not burst upon the mind with such clarity that a
  judgment in favor of suppressing the truth ought to be
  pronounced by this honorable Court.  I respectfully