Democrats are again calling for an expanded Supreme Court. But as the justices return this month for a new term, the data complicate the argument that the Court has become a conservative monolith that requires expansion. In nine of the 21 terms since John Roberts became Chief Justice, the Court decided more cases in the liberal direction than the conservative one.
The fight over the Court is unfolding just weeks before the midterms. Sen. Adam Schiff (D-Calif.) has called for expanding the Court, while House Minority Leader Hakeem Jeffries (D-N.Y.) has promised “dramatic reform.” In May, Rep. Al Green (D-Texas) introduced legislation to increase the Court from nine to 13 justices. And just last month, the House voted 212-206 on a Republican proposal for a constitutional amendment that would permanently set the Court at nine. All but one Democrat voted no, and the measure fell short of the two-thirds vote required for passage. The debate follows former President Biden’s commission examining potential changes to the Court, including expansion.
The federal judiciary can be criticized and reformed, but any reform should begin with an accurate account of the problem. The Supreme Court Database, maintained by political scientists, classifies each decision as liberal or conservative using consistent rules. “Liberal-coded” does not describe the justices’ personal views; it means the outcome falls on the liberal side of those established categories.
The full record tells the same story. In two other Roberts Court terms, liberal- and conservative-coded decisions were evenly divided. Liberal-coded decisions fell below 40% in only three Roberts Court terms, the same number as under Chief Justice Warren Burger, compared with once under Chief Justice William Rehnquist. Liberal outcomes reached 58% in 2014. The Warren Court, by contrast, produced liberal majorities in 15 of its 16 terms, including five above 70%. The Roberts Court looks far more like the Rehnquist and Burger Courts than the Warren Court; it is not a conservative monolith.
The pattern holds even in the Court’s most consequential cases, those in which it struck down a law or overturned precedent. The Roberts Court took one of those steps in 104 cases; 56, or 54%, were coded in the liberal direction, compared with 48 in the conservative direction. Even among the decisions that changed the law most directly, liberal outcomes were more common.
The Court has issued important and controversial rulings: Dobbs, which overruled Roe v. Wade; Slaughter, which upheld President Trump’s removal of an FTC commissioner; and Skrmetti, which upheld Tennessee’s restrictions on certain treatments for minors. Yet it has not always produced conservative or pro-Trump outcomes. On the same day it decided Slaughter, the Court ruled against President Trump’s effort to remove Federal Reserve Governor Lisa Cook, and it has ruled against other administration positions.
The Court’s emergency orders have grown, and a SCOTUSblog study found that roughly three-quarters of grants of relief in the 2024–25 term produced conservative outcomes. That pattern has emerged alongside a sharp rise in nationwide injunctions from lower courts, especially against federal policies during President Trump’s first term, as studies show. Many of those emergency orders came in response to lower-court rulings, not at the justices’ own initiative.
Disagreement with major constitutional decisions does not prove institutional failure, much less a failure serious enough to discard 157 years of stability. Congress changed the Court’s size several times in its early history, reaching a high of 10 justices, before fixing it at nine in 1869. Court packing is also self-defeating. Its supporters say justices are driven by politics rather than law, then propose using the political process to install more politically selected justices.
If Democrats expand the Court, Republicans would have every incentive to do the same when they next control Congress and the White House. The Court’s size would change with every shift in power.
A proposal this consequential requires more than frustration with individual rulings. Court packing wouldn’t fix the Court; it would turn it into one more prize for whichever party wins the next election.
Ryan J. Owens is director of the Institute for Governance and Civics and a professor of political science at Florida State University.
