Were Barack Obama to have the opportunity to replace a conservative Justice with a liberal one, or an incoming Republican President in 2013 the reverse, that would probably be decisive for the issue, perhaps for many decades.

My best guess is that the Tea Party will largely continue to shirk the issue, but that the Republican Establishment will be fairly happy to engage it. The real battle, however, may come in 2012, when the Supreme Court could be about ready to take up the case. The leading indicator may be the reactions of the major Presidential hopefuls. For instance, will Sarah Palin produce a tweet or Facebook post containing the the phrases "activist judge" or "judicial activism" within the next 24 hours? It may depend on which type of conservatives -- the tea-partiers, or the movement conservatives of the Republican Establishment -- that she ultimately wants to affiliate herself with.