People pay respects as Justice Ruth Bader Ginsburg lies in repose under the Portico at the top of the front steps of the U.S. Supreme Court building on Wednesday, Sept. 23, 2020, in Washington. Ginsburg, 87, died of cancer on Sept. 18. Credit: Alex Brandon | AP

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Play this out with me.

An American president, who pushed for stronger immigration laws and signed legislation making the reporting of fake news a crime, lost his campaign for re-election to a former vice president of the opposite party. The race was filled with invective and insults.

Between the election and the inauguration, numerous judicial vacancies came into being. So the outgoing president, rather than meekly go into the night, decided to appoint numerous like-minded judges in order to prevent the other political party from taking over the courts.

The Senate, controlled by the same party as the outgoing president, quickly confirmed the appointments during the “lame duck” session.

Does that sound familiar?

Would it surprise you to know that the outgoing president was John Adams? While the former vice president — and electoral victor — was Thomas Jefferson? The immigration and “fake news” laws were the Alien and Sedition Acts. The negative campaigning was brutal, even by today’s standards.

And the court appointments controversy was the basis of the famous Supreme Court case Marbury v. Madison.

As always, our history is instructive. There are plenty of paeans to the idea that the Supreme Court is above politics. And they are right; it absolutely should be. But sometimes our ideals and our reality come into conflict.

The fight between Adams’ Federalists and Jefferson’s Democratic-Republicans was likely even more consequential than our current battle. The Supreme Court had yet to assert itself as a co-equal branch of government. Thus, its political path was fraught with peril.

Here’s the twist. One of Adams’ “midnight judges” appointed before Jefferson could take office was John Marshall, chief justice of the Supreme Court of the United States.

But this is a political column, not a history lecture. There is plenty of intrigue and overlap amongst America’s early leadership; Marshall worked in the Adams administration and his actions were at issue in Marbury v. Madison. He didn’t recuse himself.

Instead, he played politics.

If you actually read the case, James Madison — yes, the famous founding father — lost. He was Jefferson’s secretary of state, and Chief Justice Marshall wrote that he broke the law by refusing to deliver Adams’ final appointments. Just because the new administration didn’t like the hardball politics of the former president, that did not give them legal grounds to undermine valid prior acts.

If Marshall stopped there, Jefferson probably would have told the Supreme Court to pound sand. Our fledgling nation, buoyed by the Constitution’s delicately tense “checks and balances,” may have never gotten off the ground. The weakest co-equal branch — the judiciary — could have been run over roughshod by the passions of the political branches.

So Marshall did some legal jujitsu. While Madison and the Jefferson Administration were found to have broken the law, he wrote that the Supreme Court was not empowered by the Constitution to give William Marbury the relief he wanted.

With that decision, Marshall simultaneously excoriated the Jeffersonians as scofflaws, gave them the substantive ability to persist in their efforts, and cemented the role of the Supreme Court as the arbiter of law.

And he did all of that because Adams, as “lame duck,” pushed partisan politics to provide a Federalist-led judiciary.

The world today is obviously different than it was in 1800. The court’s status as a co-equal branch is not in doubt. Yet its legitimacy is continually undermined by never-ending partisan rancor. Indeed, Justice Ruth Bader Ginsburg lamented the sideshow that was Justice Brett Kavanaugh’s confirmation hearings, going on to praise his judicial service and abilities.

It now seems clear that President Donald Trump is committed to nominating a replacement for Ginsburg’s seat. And, over Sen. Susan Collins’ objections, it appears as if a vote will take place before the next Senate convenes and the next presidential inauguration occurs.

But we have been here before. And it led to Chief Justice John Marshall, Marbury v. Madison, and the seminal holding that “it is emphatically the province and duty of the Judicial Department to say what the law is.”

Not bad for a midnight judge appointed by a lame duck president.

Michael Cianchette is a Navy reservist who served in Afghanistan and in-house counsel to a number of businesses in southern Maine. He was a chief counsel to former Gov. Paul LePage.

Michael Cianchette, Opinion columnist

Michael Cianchette is a Navy reservist who served in Afghanistan. He is in-house counsel to a number of businesses in southern Maine and was a chief counsel to former Gov. Paul LePage.