Cite as: 518 U. S. 1 (1996)
Scalia, J., dissenting
from this day forward in all federal courts, upon "the States' unanimous judgment that some form of psychotherapist privilege is appropriate," 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.
III
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 17, 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, at 21. The Court, however, has "no hesitation in concluding . . . that the federal privilege should also extend" to social workers, ante, at 15— and goes on to prove that by polishing off the reasoned analysis with a topic sentence and two sentences of discussion, as follows (omitting citations and nongermane footnote):
"The reasons for recognizing a privilege for treatment by psychiatrists and psychologists apply with equal force to treatment by a clinical social worker such as Karen Beyer. Today, social workers provide a signifi-cant 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 psy-
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