Cite as: 518 U. S. 1 (1996)
Scalia, J., dissenting
ance of state policies is the name of the game, rules of privilege in federal courts should vary from State to State, à la Erie R. Co. v. Tompkins, 304 U. S. 64 (1938).
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.1
1 The Court observes: "In 1972 the members of the Judicial Conference Advisory Committee noted that the common law 'had indicated a disposition to recognize a psychotherapist-patient privilege when legislatures began moving into the field.' Proposed Rules, 56 F. R. D., at 242 (citation omitted)." Ante, at 13-14. The sole support the Committee invoked was a student Note entitled Confidential Communications to a Psychotherapist: A New Testimonial Privilege, 47 Nw. U. L. Rev. 384 (1952). That source, in turn, cites (and discusses) a single case recognizing a common-law psychotherapist privilege: the unpublished opinion of a judge of the Circuit Court of Cook County, Illinois, Binder v. Ruvell, No. 52-C-2535 (June 24, 1952)—which, in turn, cites no other cases.
I doubt whether the Court's failure to provide more substantial support for its assertion stems from want of trying. Respondents and all of their amici pointed us to only four other state-court decisions supposedly adopting a common-law psychotherapist privilege. See Brief for American Psychiatric Association et al. as Amici Curiae 8, n. 5; Brief for American Psychoanalytic Association et al. as Amici Curiae 15-16; Brief for American Psychological Association as Amicus Curiae 8. It is not surprising that the Court thinks it not worth the trouble to cite them: (1) In In re "B," 482 Pa. 471, 394 A. 2d 419 (1978), the opinions of four of the seven justices explicitly rejected a nonstatutory privilege; and the two justices who did recognize one recognized, not a common-law privilege, but rather (mirabile dictu) a privilege "constitutionally based," "emanat[ing] from the penumbras of the various guarantees of the Bill of Rights, . . . as well as from the guarantees of the Constitution of this Commonwealth." Id., at 484, 394 A. 2d, at 425. (2) Allred v. State, 554 P. 2d 411 (Alaska 1976), held that no privilege was available in the case before the court, so what it says about the existence of a common-law privilege is the purest dictum. (3) Falcon v. Alaska Pub. Offices Comm'n, 570 P. 2d 469 (1977), a later Alaska Supreme Court case, proves the last statement. It rejected the claim by a physician that he did not have to disclose the names of his patients, even though some of the physician's practice consisted of psycho-
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