I am surprised this question has not arisen before, but I confess it may have and I missed it.
Will we be permitted to “expand” the Supreme Court?
Sure congress has that power in THEORY these days, but that was in the before times, when the Constitution mattered.
Suppose we control bother houses of Congress and vote to increase the SCOTUS from 9 justices to 13. As soon as we do, Moscow Mitch and his merry band of billionaires will sue to invalidate the action.
So, who will get to hear the case? A district court? A circuit court? Oh, Hell no, it will go straight to the SCOTUS, do not pass go, do not collect $2 billion from Russian oligarchs. And are we to seriously believe the Kavanaugh Court will cheerfully slit its own throat and rule in favor of the Constitution? I just don’t see that happening. Instead they will declare the act unconstitutional and then what?
It seems that the only recourse will be to impeach current members for various bits of perjury committed during their senate hearings. And even then there is no guarantee they won’t decide to challenge such a move, or the Dems won’t insist on playing by the rules and requiring 67 votes to convict in the senate.
I am no longer sanguine about any argument that relies on Constitutional law, legal precedent, or custom, being sacrosanct.