The Supreme Court is increasingly relying on “common sense” reasoning in its decisions, raising both interest and concern among legal observers. This trend is seen in a variety of significant cases recently adjudicated by the court. For instance, the case Learning Resources v. Trump exemplifies the court’s reliance on common sense, sparking skepticism from Justice Neil Gorsuch. He critiqued the invocation of common sense in judicial reasoning, though he joined parts of Chief Justice Roberts’ opinion that did the same.
Similarly, in the 2025 ruling in Diamond Alternative Energy v. EPA, the court asserted that fuel producers had the standing to sue the EPA. Justice Brett Kavanaugh’s majority opinion made frequent references to common sense, prompting dissent from Justice Ketanji Brown Jackson.
The trend continues with the Second Amendment case United States v. Rahimi, which upheld a federal law prohibiting individuals under domestic-violence restraining orders from possessing firearms. The majority opinion again cited “common sense,” juxtaposing it with historical principles to support legislative power in prohibiting dangerous individuals from gun ownership.
The use of common sense has sparked extensive scholarly critique. As noted by legal scholars Brian Murray (forthcoming work) and William Aceves (forthcoming article), the flexibility of common sense in legal reasoning is deemed problematic due to its potentially subjective application.
While “common sense” might embed important shared precepts in legal reasoning, its invocation in the absence of true consensus can obfuscate genuine legal disagreements. As Justice Kavanaugh and others turn towards this mode of reasoning, the court seems to be stepping away from more rigid interpretative methodologies, potentially masking the need for more explicit doctrinal adjustments.
To read more about the increasing role of common sense in Supreme Court decisions, you can find the full discussion on SCOTUSblog.