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No. 95-266
CARRIE JAFFEE, special administrator for
on writ of certiorari to the united states court
of appeals for the seventh circuit
[June 13, 1996]

  Justice Scalia, with whom The Chief Justice  joins
as to Part III, dissenting.
  The Court has discussed at some length the benefit
that will be purchased by creation of the evidentiary
privilege in this case: the encouragement of psychoana-
lytic counseling.  It has not mentioned the purchase
price: occasional injustice.  That is the cost of every rule
which excludes reliable and probative evidence-or at
least every one categorical enough to achieve its an-
nounced policy objective.  In the case of some of these
rules, such as the one excluding confessions that have
not been properly -Mirandized,- see Miranda v. Arizona,
384 U. S. 436 (1966), the victim of the injustice is
always the impersonal State or the faceless -public at
large.-  For the rule proposed here, the victim is more
likely to be some individual who is prevented from
proving a valid claim-or (worse still) prevented from
establishing a valid defense.  The latter is particularly
unpalatable for those who love justice, because it causes
the courts of law not merely to let stand a wrong, but
to become themselves the instruments of wrong.
  In the past, this Court has well understood that the
particular value the courts are distinctively charged with
preserving-justice-is severely harmed by contravention
of -the fundamental principle that `-the public . . . has
a right to every man's evidence.-'-  Trammel v. United
States, 445 U. S. 40, 50 (1980) (citation omitted). 
Testimonial privileges, it has said, -are not lightly
created nor expansively construed, for they are in
derogation of the search for truth.-  United States v.
Nixon, 418 U. S. 683, 710 (1974) (emphasis added). 
Adherence to that principle has caused us, in the Rule
501 cases we have considered to date, to reject new
privileges, see University of Pennsylvania v. EEOC, 493
U. S. 182 (1990) (privilege against disclosure of academic
peer review materials); United States v. Gillock, 445
U. S. 360 (1980) (privilege against disclosure of -legisla-
tive acts- by member of state legislature), and even to
construe narrowly the scope of existing privileges, see,
e.g., United States v. Zolin, 491 U. S. 554, 568-570
(1989) (permitting in camera review of documents
alleged to come within crime-fraud exception to attorney-
client privilege); Trammel, supra (holding that voluntary
testimony by spouse is not covered by husband-wife
privilege).  The Court today ignores this traditional
judicial preference for the truth, and ends up creating a
privilege that is new, vast, and ill-defined.  I respectfully

  The case before us involves confidential communica-
tions made by a police officer to a state-licensed clinical
social worker in the course of psychotherapeutic counsel-
ing.  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 privi-
lege,'- ante, at 1, 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 13.
  Of course the prototypical evidentiary privilege analo-
gous to the one asserted here-the lawyer-client privi-
lege-is not identified by the broad area of advice-giving
practiced by the person to whom the privileged commu-
nication 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 accoun-
tant-client privilege.  But if one recharacterizes 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 counsel-
ing?-) with the answer 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 rele-
vantly, 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 12-13, and is ignored in the single page devoted
to the sideshow which happens to be the issue presented
for decision, ante, at 13-14.
  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.

  To say that the Court devotes the bulk of its opinion
to the much easier question of psychotherapist-patient
privilege is not to say that its answer to that question
is convincing.  At bottom, the Court's decision to
recognize such a privilege is based on its view that
-successful [psychotherapeutic] treatment- serves -impor-
tant private interests- (namely those of patients under-
going psychotherapy) as well as the -public good- of
-[t]he mental health of our citizenry.-  Ante, at 7-9.  I
have no quarrel with these premises.  Effective psycho-
therapy undoubtedly is beneficial to individuals with
mental problems, and surely serves some larger social
interest in maintaining a mentally stable society.  But
merely mentioning these values does not answer the
critical question: are they of such importance, and is the
contribution of psychotherapy to them so distinctive, and
is the application of normal evidentiary rules so destruc-
tive to psychotherapy, as to justify making our federal
courts occasional instruments of injustice?  On that
central question I find the Court's analysis insufficiently
convincing to satisfy the high standard we have set for
rules that -are in derogation of the search for truth.- 
Nixon, 418 U. S., at 710.
  When is it, one must wonder, that the psychotherapist
came to play such an indispensable role in the mainte-
nance of the citizenry's mental health?  For most of
history, men and women have worked out their difficul-
ties by talking to, inter alios, parents, siblings, best
friends and bartenders-none of whom was awarded a
privilege against testifying in court.  Ask the average
citizen: Would your mental health be more significantly
impaired by preventing you from seeing a psychothera-
pist, or by preventing you from getting advice from your
mom?  I have little doubt what the answer would be. 
Yet there is no mother-child privilege.
  How likely is it that a person will be deterred from
seeking psychological counseling, or from being com-
pletely truthful in the course of such counseling, because
of fear of later disclosure in litigation?  And even more
pertinent to today's decision, to what extent will the
evidentiary privilege reduce that deterrent?  The Court
does not try to answer the first of these questions; and
it cannot possibly have any notion of what the answer is
to the second, since that depends entirely upon the scope
of the privilege, which the Court amazingly finds it
-neither necessary nor feasible to delineate,- ante, at 16. 
If, for example, the psychotherapist can give the patient
no more assurance than -A court will not be able to
make me disclose what you tell me, unless you tell me
about a harmful act,- I doubt whether there would be
much benefit from the privilege at all.  That is not a
fanciful example, at least with respect to extension of
the psychotherapist privilege to social workers.  See Del.
Code Ann., Tit. 24, 3913(2) (1987); Idaho Code
54-3213(2) (1994).
  Even where it is certain that absence of the psycho-
therapist privilege will inhibit disclosure of the infor-
mation, it is not clear to me that that is an unaccept-
able state of affairs.  Let us assume the very worst in
the circumstances of the present case: that to be truthful
about what was troubling her, the police officer who
sought counseling would have to confess that she shot
without reason, and wounded an innocent man.  If
(again to assume the worst) such an act constituted the
crime of negligent wounding under Illinois law, the
officer would of course have the absolute right not to
admit that she shot without reason in criminal court. 
But I see no reason why she should be enabled both not
to admit it in criminal court (as a good citizen should),
and to get the benefits of psychotherapy by admitting it
to a therapist who cannot tell anyone else.  And even
less reason why she should be enabled to deny her guilt
in the criminal trial-or in a civil trial for negli-
gence-while yet obtaining the benefits of psychotherapy
by confessing guilt to a social worker who cannot testify. 
It seems to me entirely fair to say that if she wishes the
benefits of telling the truth she must also accept the
adverse consequences.  To be sure, in most cases the
statements to the psychotherapist will be only margin-
ally relevant, and one of the purposes of the privilege
(though not one relied upon by the Court) may be
simply to spare patients needless intrusion upon their
privacy, and to spare psychotherapists needless expendi-
ture of their time in deposition and trial.  But surely
this can be achieved by means short of excluding even
evidence that is of the most direct and conclusive effect.
  The Court confidently asserts that not much truth-
finding capacity would be destroyed by the privilege
anyway, since -[w]ithout a privilege, much of the desir-
able evidence to which litigants such as petitioner seek
access . . . is unlikely to come into being.-  Ante, at 10. 
If that is so, how come psychotherapy got to be a
thriving practice before the -psychotherapist privilege-
was invented?  Were the patients paying money to lie to
their analysts all those years?  Of course the evidence-
generating effect of the privilege (if any) depends
entirely upon its scope, which the Court steadfastly
declines to consider.  And even if one assumes that
scope to be the broadest possible, is it really true that
most, or even many, of those who seek psychological
counseling have the worry of litigation in the back of
their minds?  I doubt that, and the Court provides no
evidence to support it.
  The Court suggests one last policy justification: since
psychotherapist privilege statutes exist in all the States,
the failure to recognize a privilege in federal courts
-would frustrate the purposes of the state legislation
that was enacted to foster these confidential communica-
tions.-  Ante, at 11.  This is a novel argument indeed. 
A sort of inverse pre-emption: the truth-seeking func-
tions of federal courts must be adjusted so as not to
conflict with the policies of the States.  This reasoning
cannot be squared with Gillock, which declined to
recognize an evidentiary privilege for Tennessee legisla-
tors in federal prosecutions, even though the Tennessee
Constitution guaranteed it in state criminal proceedings. 
Gillock, 445 U. S., at 368.  Moreover, since, as I shall
discuss, state policies regarding the psychotherapist
privilege vary considerably from State to State, no
uniform federal policy can possibly honor most of them. 
If furtherance of state policies is the name of the game,
rules of privilege in federal courts should vary from
State to State, - la Erie.
  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.  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 psychothera-
pist privilege.-  Ante, at 10 (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 12, n. 13.  To
rest a newly announced federal common-law psychother-
apist privilege, assertable from this day forward in all
federal courts, upon -the States' unanimous judgment
that some form of psychotherapist privilege is appropri-
ate,- 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.

  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 15,
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.  The Court, however, has
-no hesitation in concluding . . . that the federal
privilege should also extend- to social workers, ante, at
13-and goes on to prove that by polishing off the
reasoned analysis with a topic sentence and two sen-
tences of discussion, as follows (omitting citations and
nongermane footnote):
-The reasons for recognizing a privilege for treat-
ment by psychiatrists and psychologists apply with
equal force to treatment by a clinical social worker
such as Karen Beyer.  Today, social workers provide
a significant 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 psychologist, but whose counseling
sessions serve the same public goals.-  Ante, at
So much for the rule that privileges are to be narrowly
  Of course this brief analysis-like the earlier, more
extensive, discussion of the general psychotherapist
privilege-contains no explanation of why the psycho-
therapy provided by social workers is a public good of
such transcendent importance as to be purchased at the
price of occasional injustice.  Moreover, it considers only
the respects in which social workers providing therapeu-
tic services are similar to licensed psychiatrists and
psychologists; not a word about the respects in which
they are different.  A licensed psychiatrist or psycholo-
gist is an expert in psychotherapy-and that may suffice
(though I think it not so clear that this Court should
make the judgment) to justify the use of extraordinary
means to encourage counseling with him, as opposed to
counseling with one's rabbi, minister, family or friends. 
One must presume that a social worker does not bring
this greatly heightened degree of skill to bear, which is
alone a reason for not encouraging that consultation as
generously.  Does a social worker bring to bear at least
a significantly heightened degree of skill-more than a
minister or rabbi, for example?  I have no idea, and
neither does the Court.  The social worker in the
present case, Karen Beyer, was a -licensed clinical social
worker- in Illinois, App. 18, a job title whose training
requirements consist of -master's degree in social work
from an approved program,- and -3,000 hours of satisfac-
tory, supervised clinical professional experience.-  Ill.
Comp. Stat., ch. 225, 20/9 (1994).  It is not clear that
the degree in social work requires any training in
psychotherapy.  The -clinical professional experience-
apparently will impart some such training, but only of
the vaguest sort, judging from the Illinois Code's
definition of -[c]linical social work practice,- viz., -the
providing of mental health services for the evaluation,
treatment, and prevention of mental and emotional
disorders in individuals, families and groups based on
knowledge and theory of psychosocial development,
behavior, psychopathology, unconscious motivation,
interpersonal relationships, and environmental stress.- 
Ch. 225, 20/3(5).  But the rule the Court announces
today-like the Illinois evidentiary privilege which that
rule purports to respect, Ch. 225, 20/16.-is not
limited to -licensed clinical social workers,- but includes
all -licensed social workers.-  -Licensed social workers-
may also provide -mental health services- as described
in 20/3(5), so long as it is done under supervision of a
licensed clinical social worker.  And the training require-
ment for a -licensed social worker- consists of either (a)
-a degree from a graduate program of social work-
approved by the State, or (b) -a degree in social work
from an undergraduate program- approved by the State,
plus -3 years of supervised professional experience.-  Ch.
225, 20/9A.  With due respect, it does not seem to me
that any of this training is comparable in its rigor (or
indeed in the precision of its subject) to the training of
the other experts (lawyers) to whom this Court has
accorded a privilege, or even of the experts (psychiatrists
and psychologists) to whom the Advisory Committee and
this Court proposed extension of a privilege in 1972.  Of
course these are only Illinois' requirements for -social
workers.-  Those of other States, for all we know, may
be even less demanding.  Indeed, I am not even sure
there is a nationally accepted definition of -social
worker,- as there is of psychiatrist and psychologist.  It
seems to me quite irresponsible to extend the so-called
-psychotherapist privilege- to all licensed social workers,
nationwide, without exploring these issues.
  Another critical distinction between psychiatrists and
psychologists, on the one hand, and social workers, on
the other, is that the former professionals, in their
consultations with patients, do nothing but psychother-
apy.  Social workers, on the other hand, interview people
for a multitude of reasons.  The Illinois definition of
-[l]icensed social worker,- for example, is as follows:
     -Licensed social worker- means a person who
holds a license authorizing the practice of social
work, which includes social services to individuals,
groups or communities in any one or more of the
fields of social casework, social group work, commu-
nity organization for social welfare, social work
research, social welfare administration or social
work education.-  Ch. 225, 20/3(9).
Thus, in applying the -social worker- variant of the
-psychotherapist- privilege, it will be necessary to
determine whether the information provided to the social
worker was provided to him in his capacity as a psycho-
therapist, or in his capacity as an administrator of social
welfare, a community organizer, etc.  Worse still, if the
privilege is to have its desired effect (and is not to
mislead the client), it will presumably be necessary for
the social caseworker to advise, as the conversation with
his welfare client proceeds, which portions are privileged
and which are not.
  Having concluded its three sentences of reasoned
analysis, the Court then invokes, as it did when consid-
ering the psychotherapist privilege, the -experience- of
the States-once again an experience I consider irrele-
vant (if not counter-indicative) because it consists
entirely of legislation rather than common-law decision. 
It says that -the vast majority of States explicitly extend
a testimonial privilege to licensed social workers.-  Ante,
at 15.  There are two elements of this impressive
statistic, however, that the Court does not reveal.
  First-and utterly conclusive of the irrelevance of this
supposed consensus to the question before us-the
majority of the States that accord a privilege to social
workers do not do so as a subpart of a -psychotherapist-
privilege.  The privilege applies to all confidences
imparted to social workers, and not just those provided
in the course of psychotherapy.  In Oklahoma, for
example, the social-worker-privilege statute prohibits a
licensed social worker from disclosing, or being com-
pelled to disclose, -any information acquired from
persons consulting the licensed social worker in his or
her professional capacity- (with certain exceptions to be
discussed infra).  Okla. Stat., Tit. 59, 1261.6 (1991)
(emphasis added).  The social worker's -professional
capacity- is expansive, for the -practice of social work-
in Oklahoma is defined as:
-[T]he professional activity of helping individuals,
groups, or communities enhance or restore their
capacity for physical, social and economic functioning
and the professional application of social work
values, principles and techniques in areas such as
clinical social work, social service administration,
social planning, social work consultation and social
work research to one or more of the following ends:
Helping people obtain tangible services; counseling
with individuals families and groups; helping com-
munities or groups provide or improve social and
health services; and participating in relevant social
action.  The practice of social work requires knowl-
edge of human development and behavior; of social
economic and cultural institutions and forces; and of
the interaction of all of these factors.  Social work
practice includes the teaching of relevant subject
matter and of conducting research into problems of
human behavior and conflict.-  Tit. 59, 1250.1(2)
Thus, in Oklahoma, as in most other States having a
social-worker privilege, it is not a subpart or even a
derivative of the psychotherapist privilege, but rather a
piece of special legislation similar to that achieved by
many other groups, from accountants, see, e.g., Miss.
Code Ann. 73-33-16(2) (1995) (certified public accoun-
tant -shall not be required by any court of this state to
disclose, and shall not voluntarily disclose- client
information), to private detectives, see, e.g., Mich. Comp.
Laws 338.840 (1979) (-Any communications . . . fur-
nished by a professional man or client to a [licensed
private detective], or any information secured in connec-
tion with an assignment for a client, shall be deemed
privileged with the same authority and dignity as are
other privileged communications recognized by the courts
of this state-).  These social-worker statutes give no
support, therefore, to the theory (importance of psycho-
therapy) upon which the Court rests its disposition.
  Second, the Court does not reveal the enormous degree
of disagreement among the States as to the scope of the
privilege.  It concedes that the laws of four States are
subject to such gaping exceptions that they are -`little
better than no privilege at all,'- ante, at 16 and n. 18,
so that they should more appropriately be categorized
with the five States whose laws contradict the action
taken today.  I would add another State to those whose
privilege is illusory.  See Wash. Rev. Code 18.19.180
(1994) (disclosure of information required -[i]n response
to a subpoena from a court of law-).  In adopting any
sort of a social worker privilege, then, the Court can at
most claim that it is following the legislative -experi-
ence- of 40 States, and contradicting the -experience- of
  But turning to those States that do have an apprecia-
ble privilege of some sort, the diversity is vast.  In
Illinois and Wisconsin, the social-worker privilege does
not apply when the confidential information pertains to
homicide, see Ill. Comp. Stat., ch. 740, 110/10(a)(9)
(1994); Wis. Stat. 905.04(4)(d) (1993-1994), and in the
District of Columbia when it pertains to any crime
-inflicting injuries- upon persons, see D. C. Code
14-307(a)(1) (1995).  In Missouri, the privilege is
suspended as to information that pertains to a criminal
act, see Mo. Rev. Stat. 337.636(2) (1994), and in Texas
when the information is sought in any criminal prosecu-
tion, compare Tex. Rule Civ. Evid. 510(d) with Tex. Rule
Crim. Evid. 501 et seq.  In Kansas and Oklahoma, the
privilege yields when the information pertains to
-violations of any law,- see Kan. Stat. Ann.
65-6315(a)(2) (Supp. 1990); Okla. Stat., Tit. 59,
1261.6(2) (1991); in Indiana, when it reveals a -serious
harmful act,- see Ind. Code Ann. 25-23.6-6-1(2) (1995);
and in Delaware and Idaho, when it pertains to any
-harmful act,- see Del. Code Ann., Tit. 24, 3913(2)
(1987); Idaho Code 54-3213(2) (1994).  In Oregon, a
state-employed social worker like Karen Beyer loses the
privilege where her supervisor determines that her
testimony -is necessary in the performance of the duty
of the social worker as a public employee.-  See Ore.
Rev. Stat. 40.250(5) (1991).  In South Carolina, a social
worker is forced to disclose confidences -when required
by statutory law or by court order for good cause shown
to the extent that the patient's care and treatment or
the nature and extent of his mental illness or emotional
condition are reasonably at issue in a proceeding.-  See
S. C. Code Ann. 19-11-95(D)(1) (Supp. 1995).  The
majority of social-worker-privilege States declare the
privilege inapplicable to information relating to child
abuse.  And the States that do not fall into any of the
above categories provide exceptions for commitment
proceedings, for proceedings in which the patient relies
on his mental or emotional condition as an element of
his claim or defense, or for communications made in the
course of a court-ordered examination of the mental or
emotional condition of the patient.
  Thus, although the Court is technically correct that
-the vast majority of States explicitly extend a testimo-
nial privilege to licensed social workers,- ante, at 15,
that uniformity exists only at the most superficial level. 
No State has adopted the privilege without restriction;
the nature of the restrictions varies enormously from
jurisdiction to jurisdiction; and 10 States, I reiterate,
effectively reject the privilege entirely.  It is fair to say
that there is scant national consensus even as to the
propriety of a social-worker psychotherapist privilege,
and none whatever as to its appropriate scope.  In other
words, the state laws to which the Court appeals for
support demonstrate most convincingly that adoption of
a social-worker psychotherapist privilege is a job for

              *      *      *
  The question before us today is not whether there
should be an evidentiary privilege for social workers
providing therapeutic services.  Perhaps there should. 
But the question before us is whether (1) the need for
that privilege is so clear, and (2) the desirable contours
of that privilege are so evident, that it is appropriate for
this Court to craft it in common-law fashion, under Rule
501.  Even if we were writing on a clean slate, I think
the answer to that question would be clear.  But given
our extensive precedent to the effect that new privileges
-in derogation of the search for truth- -are not lightly
created,- United States v. Nixon, 418 U. S., at 710, the
answer the Court gives today is inexplicable.
  In its consideration of this case, the Court was the
beneficiary of no fewer than 14 amicus briefs supporting
respondents, most of which came from such organiza-
tions as the American Psychiatric Association, the
American Psychoanalytic Association, the American
Association of State Social Work Boards, the Employee
Assistance Professionals Association, Inc., the American
Counseling Association, and the National Association of
Social Workers.  Not a single amicus brief was filed in
support of petitioner.  That is no surprise.  There is no
self-interested organization out there devoted to pursuit
of the truth in the federal courts.  The expectation is,
however, that this Court will have that interest promi-
nently-indeed, primarily-in mind.  Today we have
failed that expectation, and that responsibility.  It is no
small matter to say that, in some cases, our federal
courts will be the tools of injustice rather than unearth
the truth where it is available to be found.  The com-
mon law has identified a few instances where that is
tolerable.  Perhaps Congress may conclude that it is also
tolerable for the purpose of encouraging psychotherapy
by social workers.  But that conclusion assuredly does
not burst upon the mind with such clarity that a
judgment in favor of suppressing the truth ought to be
pronounced by this honorable Court.  I respectfully