I don’t know about that. I practiced for 25 years and, at times, before SCOTUS and they don’t really care about that. This was an optimal moment to address the issue. While you may be correct, I must say I am pretty much shocked.
Are you still practicing? How about filing an “amicus brief” in our favor?
(I may not be a lawyer, or play one on TV, but I did hear that on TV once or twice)
The Optimal Moment will be after a few more Kagan’s and Wise Latina’s are Seated and the Old White (and One Old Black) Guy have died off or retired.