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Report No. 95

3.37. Need for leisure-Views of Bickel and Griswold.-

Alexander Bickel has pointed out that judges have, or should have, the leisure, the training, and the inclination to follow the ways of the scholar in pursuing the ends of Government. Reason alone cannot tell you anything: it can only connect premises to conclusions. To mean anything, therefore, the reference has to be somewhat richer, to involve the invocation of premises along with the way one reasons from them. The basic idea thus seems to be that moral philosophy is what constitutional law is properly about; that there exists a correct way utilising such philosophy: and that judges are better than others at identifying and engaging in it. Griswold1 has also stressed the need for leisure in these words:-

"I have never written an opinion for a court; but I have tried my hand at writing articles and briefs, as well as examination questions, and I know something about the way legal thought develops in one's mind and the problems and difficulties, the groping and frustration, the striving for clarity and exactitude, and finally, the sheer labour of English composition involved in written legal work".

The need for the availability of adequate time for a court of last resort has been, lucidly stressed by Dr. Edward McWhinney who was good enough to give us the benefit of his views on our questionnaire.2 This is what he says while addressing himself to question No. 3:

"A final appellate tribunal can only function effectively when it has enough time properly to consider, research and decide those cases that do come to it. Some form of discretionary control by a court over the size of its work-load and the number of cases coming to it seems an indispensable and necessary part of the final appellate tribunal function. The implication is that such final tribunal must have an adequate advance screening procedure as to its cases, and thereby have full discretionary power to accept, or to decline to take, matters according to a preliminary conclusion as to their relative public importance. A final appellate tribunal must itself be judged, in the end, not by the sheer quantity of cases it decides, but by their constitutional-legal weight and significance."

1. Erwin W. Griswold Supreme Court-1979 Team: Forward, (1960-61) 74 Harvard Law Review 83-84.

2. See para. 1.7, supra.

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