I assume you mean US courts? In other countries there have been lots of cases about TOS, in one way or another. Strange that there isn't such a thing in the us
Not the parent commenter nor a lawyer, but I believe it's something like a company can't put things that someone would never agree to in the TOS and have it be binding. But obviously that "would never agree to" part is fuzzy at best and possibly what they're referring to when saying it's not been tested. I might be mistaken about that but I have heard something to that effect from a prosecutor I know.