20
Scalia, J., dissenting
ing a privilege that is new, vast, and ill defined. I respectfully dissent.
I
The case before us involves confidential communications made by a police officer to a state-licensed clinical social worker in the course of psychotherapeutic counseling. 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 privilege,' " ante, at 4, 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 15.
Of course the prototypical evidentiary privilege analogous to the one asserted here—the lawyer-client privilege—is not identified by the broad area of advice giving practiced by the person to whom the privileged communication 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 accountant-client privilege. But if one re-characterizes 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 counseling?") with the answer
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