The Supreme Court has been refusing to hear these cases.
I suspect that neither side knows for sure which way Kennedy or Roberts will jump.
Do we really want the Court to hear such a case with President Obama in power? He has the full force of the NSA, CIA, and the FBI to bring to bear on a Justice, if it is needed to get the decision that he wants.
My point is that I don’t worry about it until the scotus weighs in.