26
Scalia, J., dissenting
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 psychotherapist privilege." Ante, at 12 (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 14, n. 13. To rest a newly announced federal common-law psychotherapist privilege, assertable
therapy; it made no mention of Allred's dictum that there was a common-law psychiatrist-patient privilege (though if that existed it would seem relevant), and cited Allred only for the proposition that there was no statutory privilege, 570 P. 2d, at 473, n. 12. And finally, (4) State v. Evans, 104 Ariz. 434, 454 P. 2d 976 (1969), created a limited privilege, applicable to court-ordered examinations to determine competency to stand trial, which tracked a privilege that had been legislatively created after the defendant's examination.
In light of this dearth of case support—from all the courts of 50 States, down to the county-court level—it seems to me the Court's assertion should be revised to read: "The common law had indicated scant disposition to recognize a psychotherapist-patient privilege when (or even after) legislatures began moving into the field."
Page: Index Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: October 4, 2007