“Common sense” reasoning is becoming more common at the Supreme Court. The justices have explicitly relied on common sense to underwrite its holdings in several salient areas of law. And commentators are beginning to seize on that trend.
Some examples
Major questions and tariffs
The most striking recent example of the commonsense turn is the tariffs case, Learning Resources v. Trump. As one of us described the key facts last month:
[Learning Resources] featured not just debate over the major questions doctrine but also dozens of references to “common sense” or “commonsense,” even though the case featured a 6–3 lineup and seven sharply divergent opinions. Many of these uses of “common sense” did not reflect the plain meaning of statutory terms but instead represented controversial intuitions about the proper operation of government. … Remarkably, every justice in Learning Resources authored or joined a “common sense” opinion.
The jurist most skeptical of the “commonsense” turn was Justice Neil Gorsuch, whose concurrence forcefully criticized Justice Amy Coney Barrett’s quasi-canonical invocation of common sense in her own Biden v. Nebraska concurrence. As he put it, “if common sense really does go so far as to embrace a rule counseling ‘skepticism’ of claims by executive officials that Congress has granted them extraordinary powers, that is common sense in name only.” Gorsuch nonetheless joined the portion of the chief justice’s opinion that repeatedly invoked “common sense.”
Learning Resources thus illustrates not just the rise of common sense judging, but also the emergence of resistance to it.
Standing and Diamond Alternative Energy
In the 2025 decision in Diamond Alternative Energy v. EPA, in which the court held that fuel producers had standing to sue the EPA, Justice Brett Kavanaugh’s majority opinion repeatedly emphasized common sense.
Consider the following passage, which uses “commonsense” in four successive sentences:
In cases of [a certain] kind, this Court’s analysis of causation and redressability has recognized commonsense economic realities. When third party behavior is predictable, commonsense inferences may be drawn. Importantly, EPA agrees that “commonsense economic principles” can be useful when evaluating Article III standing. In this case, those commonsense economic principles support the fuel producers’ standing.
In dissent, Justice Ketanji Brown Jackson recognized the court’s distinctively commonsensical mode of argument and responded in part by challenging it:
I have no quarrel with relying on common sense as a general matter. But we should acknowledge that what counts as a “commonsense” inference to the Justices on this Court may not be viewed as such by others.
In total, “common sense” or “commonsense” appear over a dozen times in the Diamond Alternative Energy opinions.
The Second Amendment and Rahimi
In 2024’s United States v. Rahimi, in which the court upheld a federal law banning persons subject to a domestic-violence restraining order from possessing a gun, the chief justice’s majority opinion also invoked “common sense,” noting that certain practices “confirm what common sense suggests.”
That statement paired well with the court’s turn toward “principles” discernible from history, rather than specific historical analogues. In that vein, Barrett’s separate writing quoted one of her own lower court opinions: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” (Though she did not explain which is doing the work – history, or common sense.)
Much has been written about the pliability of history and tradition in Second Amendment doctrine. But the other opinions in Rahimi demonstrate the pliability of common sense as well. Justice Sonia Sotomayor invoked commonsense, including by quoting Justice Stephen Breyer’s dissent in New York State Rifle & Pistol Association v. Bruen. Had the court adopted a “rigid approach to [] historical inquiry,” she worried, it would have made it “‘nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.’”
And Justice Clarence Thomas’ dissent used commonsense, too. “If self-defense is ‘the central component of the [Second Amendment] right,’ then common sense dictates that it matters whether you can defend yourself with a firearm anywhere, only at home, or nowhere.” (Left unanswered: whether a particular “sense” can truly be “common,” when it is conditioned on knowing a somewhat arcane point of constitutional law.)
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