US Supreme Court Increasingly Relies on Common Sense Reasoning

U.S. Supreme Court justices have increasingly used “common sense” reasoning to justify legal holdings across various areas of law [1, 2].

This trend is significant because it suggests a departure from strict textualism, the judicial philosophy of interpreting law based on the plain meaning of the text. Legal experts argue that relying on subjective common sense rather than established legal frameworks may reduce the predictability of court rulings.

Tom Goldstein said, "Common sense reasoning is becoming more common at the Supreme Court" ^[1]. This shift has become apparent during the 2025-2026 Supreme Court term, as justices move away from the rigid linguistic analysis that defined previous eras. For example, past reasoning often focused on minute grammatical details, such as when Justice Antonin Scalia noted that a specific comma set apart a preface to the operative clause regarding the right to bear arms ^[3].

However, the application of common sense is a point of contention among observers. While some reports indicate that justices explicitly rely on these intuitions to underwrite their holdings ^[1], other critics argue the court is failing in its application of both history and common sense ^[2].

This tension is particularly visible among the court's conservative wing. An editorial from Express News said that at least six justices ^[4] — those who are ideologically conservative and were nominated to the court — are central to this evolving judicial approach ^[2].

The shift toward common sense reasoning often occurs in high-stakes cases involving voting rights and redistricting ^[2]. By prioritizing intuitive outcomes over strict textual interpretation, the court may be altering how future lower courts apply federal law across the U.S. [1, 2].