A Wise Latina and the Commonality of Common Sense

Last week I authored a post about Judge Sonia Sotomayor, identity and judicial impartiality.   An essay by Adam Liptak in yesterday’s New York Times makes me want to revisit the topic, albeit briefly.

Liptak describes a Supreme Court decision of the past term, Ashcroft v. Iqbal.   As Liptak explains, the decision makes a substantial change in federal pleading practice, one which is likely to have significant repercussions for some time to come.

Liptak includes an excerpt from the majority opinion from Justice Kennedy:

“Determining whether a complaint states a plausible claim for relief,” Justice Anthony M. Kennedy wrote for the five-justice majority, “requires the reviewing court to draw on its judicial experience and common sense.”

The reliance on ”common sense” is particularly striking to me, for such a standard is plainly subjective rather than objective.