During discovery, Jaffee discovered that Redmond had sought counseling from a licensed clinical social worker.

In its opinion, the privilege of which Redmond sought to avail herself did exist in federal law, and the trial court should have applied it.

When the United States Congress enacted the Federal Rules of Evidence in 1975, it expressly left the development of evidentiary privileges to the courts.

The "privilege of a witness... shall be governed by the principles of the common law as they may be interpreted... in the light of reason and experience."

"Effective psychotherapy... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears.

Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communication made during counseling sessions may cause embarrassment or disgrace.

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 [by excluding truthful evidence from court]?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."

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.

"Does a social worker bring to bear at least a significantly heightened degree of skill — more than a minister or rabbi, for example?