Jaffee V. Redmond - Dissenting Opinion

Dissenting Opinion

Justice Scalia disputed every major logical premise on which the majority's decision rested. At the heart of his dissent, however, stemmed from two basic propositions. First, that the relative social importance of psychotherapy was not established.

Effective psychotherapy 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 destructive to psychotherapy, as to justify making our federal courts occasional instruments of injustice ?

Second, the lack of sufficient basis to distinguish psychotherapists from others in society in whom people place valuable confidences. "For most of history, men and women have worked out their difficulties by talking to... parents, siblings, best friends, and bartenders—none of whom was awarded a privilege against testifying in court." As a result, he could not see how extending an evidentiary privilege to psychotherapists would facilitate mental health treatment.

From Scalia's vantage point, two flaws in the majority's argument were most troubling. Although all states had a psychotherapist privilege as part of their law, those states had enacted the law through legislation. The majority, by contrast, was creating one judicially after Congress had expressly declined to do so. The majority's justification—that the federal privilege was necessary to avoid undermining the laws of the states—seemed to Scalia to be an inverse form of preemption.

Also, the states were not uniform in their treatment of the question presented in the case—whether the testimony of a licensed social worker should be privileged from disclosure in court. Social workers serve a variety of roles and have a variety of backgrounds and training. "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."