Appellate court opinions are often criticized for establishing difficult precedent as a result of imperfect reasoning.This chapter, inspired by Giambattista Vico, explores the role that prerational judgment, embodied in the sensus communis, plays in the authoring of what will become unintentionally difficult precedent, using Schuette v. BAMN (2014) and its relevant precedent as an example. In Schuette the Court ruled that a voter-approved constitutional amendment that removed the power to implement affirmative action plans was not an Equal Protection violation. The chapter argues that in the opinions that preceded Schuette, the Court was accustomed to the evils the majority could undertake to preserve white dominance and maintain the status quo. Those Courts could not have anticipated the extent to which the future Court would understand that dynamic as a problem of another time. Further, it demonstrates how critics of that precedent similarly fail to account for the role of sensus communis in those earlier cases (and in their own appraisal of them) through their insistence that those opinions should have anticipated the controversies and the shifts in language that accompanied them.