Cite as: 518 U. S. 1 (1996)
Scalia, J., dissenting
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 relevantly, 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 13-15, and is ignored in the single page devoted to the sideshow which happens to be the issue presented for decision, ante, at 15-16.
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.
II
To say that the Court devotes the bulk of its opinion to the much easier question of psychotherapist-patient privilege is
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