Judges can only act retrospectively. The Supreme Court cannot wake up and say "X is unconstitutional". They look at the issues as they apply to a particular litigation.

The laws that brought NSLs and similar things were designed to make it incredibly difficult and expensive to appeal in a court. The alternative to warrantless searches has been a top secret court dedicated to National Intelligence issues that approves 97% of warrants. The PATRIOT act laws circumvented even that nominal oversight.