676
Scalia, J., dissenting
be added, before the Court's decision makes sense, an element of rank speculation. Should all these contingencies occur, the Court speculates, the Alabama Supreme Court would mechanically apply its decisional law applicable to routine probation revocation (which establishes procedures that the Court finds inadequate) rather than adopt special procedures for situations that raise constitutional questions in light of Argersinger and Scott. Ante, at 666-668. The Court has miraculously divined how the Alabama justices would resolve a constitutional question.1
But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether "imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant's Sixth Amendment right to counsel." Pet. for Cert. i. Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions, Hayburn's Case, 2 Dall. 409 (1792), particularly with respect to constitutional questions (as to which we seek to avoid even non-advisory opinions, Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)), I am amazed by the Court's conclusion that it "makes little
1 The Court says that the Alabama Supreme Court has already resolved this question, since, in finding that respondent's sentence violated the Sixth Amendment, it "expressed not the slightest hint that revocation-stage procedures . . . would affect the constitutional calculus." Ante, at 668, n. 6. Indeed it did not, and that was precisely its error. It did not answer (because it did not consider) the question whether procedures attending the probation revocation proceeding could cure the absence of counsel at trial.
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