* Senate has refused to act on Obama nominee Garland
* Court's term starts Monday, runs through next June
* Religious rights, insider trading, trademark fight on tap
* Transgender, voting rights cases could be added
By Lawrence Hurley
WASHINGTON, Sept 30 The U.S. Supreme Court opens
its new term on Monday in uncharted territory, with an vacancy
on the bench on a presidential Election Day now certain for the
first time since Abraham Lincoln won re-election in 1864 at the
height of the Civil War.
While the eight justices will start to hear oral arguments
on a range of issues including religious rights, insider trading
and intellectual property, attention will be focused on the Nov.
8 presidential election that will determine who will get to
replace Justice Antonin Scalia, who died on Feb. 13.
In Lincoln's time, Chief Justice Roger Taney, author of the
notorious pro-slavery Dred Scott decision, died in October 1864,
just weeks before the election. After Lincoln won re-election,
he appointed the anti-slavery Salmon Chase as chief justice in
December 1864. That tipped the ideological balance of the court
in Lincoln's favor, according to legal historian Paul Finkelman,
who teaches at the University of Saskatchewan College of Law in
In a step with little precedent in U.S. history, the
Republican-controlled U.S. Senate has refused to consider
confirmation of appellate judge Merrick Garland, President
Barack Obama's nominee to replace Scalia, saying the next
president should make the appointment. Obama's term ends on Jan.
20. Congress is now in recess until after the election.
More than 150 years after Lincoln appointed a new chief
justice, the next appointment could similarly herald a major
shift on the court. Without the conservative Scalia, the court
is split with four liberals and four conservatives, after years
of conservatives in the majority.
If Scalia is replaced by a more liberal justice, "we would
see a five-vote solid, consistent liberal majority that could
write its own ticket on a lot of issues," said conservative
legal activist Carrie Severino.
The court could tilt to the left on issues such as gun
rights, voting rights and the death penalty, among others.
In the next president's first four-year term in office,
there is the chance of filling even more vacancies. Three of the
justices are 78 or older: liberal Ruth Bader Ginsburg (83),
conservative Anthony Kennedy (80) and liberal Stephen Breyer
Democrat Hillary Clinton faces Republican Donald Trump in
the election. Some Republican senators are concerned that, if
she wins, Clinton could nominate a justice more liberal than
Garland, raising the possibility the Senate could move to
confirm him after the election and before Clinton is sworn in.
But the Senate's top Republican, Mitch McConnell, has said he
has no plans for that.
AVOIDING 4-4 SPLITS
In the meantime, the court will proceed shorthanded into the
2016-17 term that runs through June, hearing arguments and
issuing rulings, with Chief Justice John Roberts' court likely
eager to avoid taking up cases that could lead to 4-4 split
Such rulings leave in place lower court decisions and
provide no national legal precedent. Four cases last term ended
in 4-4 splits. One was in one of the court's biggest cases:
Obama's failed bid to revive his plan, blocked by a lower court,
to protect millions immigrants in the country illegally from
One way the court can try to avoid divisions is to take up
issues on which the justices are not ideologically divided.
There are already signs the justices are doing so, as shown
by an uptick in intellectual property disputes they are hearing,
including a major design patent battle between Apple Inc
and Samsung Electronics Co Ltd, which will be heard
on Oct. 11.
Cases on transgender rights and Republican-backed state laws
that opponents contend were designed to suppress the turnout of
black, Hispanic and other voters who tend to back Democrats
potentially could be added to the docket, although those cases
could lead to 4-4 ties.
The court on Thursday took up eight new cases, including
another intellectual property fight over whether the
Oregon-based Asian-American rock band The Slants can trademark
its name despite the term's history as a racial slur.
Among other cases of note, the court on Wednesday will
consider Illinois businessman Bassam Salman's appeal of his
insider trading conviction in a case that could hem in
prosecutors in bringing such charges in the future.
On Election Day, the court will consider a case that touches
upon race discrimination and predatory lending. The justices
will decide whether to allow the city of Miami sue Bank of
America Corp and Wells Fargo & Co over their
The court has not yet scheduled oral arguments in a
religious rights case it agreed to hear before Scalia died. It
concerns whether Missouri, on the basis of the constitutional
precept of separation of church and state, can exclude a
Lutheran church that operates a daycare center from a state
program that awards grants for resurfacing playgrounds.
Some Supreme Court experts say the court may be waiting
until Scalia's replacement is seated before it hears the case
because it may divide the court along ideological lines.
(Reporting by Lawrence Hurley; Editing by Will Dunham)