Stein Asks NC Supreme Court to Reverse 2-1 Ruling That Upheld Party-List Limit on His Judicial Vacancy Picks; Arguments Set for Nov. 10
A 2024 law makes the governor fill Supreme Court and Court of Appeals vacancies from three names chosen by the departing judge's political party. Gov. Josh Stein says the state constitution gives that choice to the governor alone, and Republican legislative leaders say lawmakers may set the process.
Three People, One List, and a Governor Who Doesn't Get to Pick From It
When a North Carolina Supreme Court justice or Court of Appeals judge leaves the bench early, someone has to name a replacement fast. For more than 150 years, that someone has been the governor, acting alone[1]. Under a 2024 law, that's no longer quite true. The governor still signs the appointment. But now the choice isn't really the governor's.
Here's the mechanism, and it's the whole fight in one sentence: when a seat opens up, the executive committee of the departing judge's political party writes a list of three names, and the governor must pick from that list[1][3]. So if a Republican judge steps down, Gov. Josh Stein, a Democrat, has to fill that seat with someone Republicans chose. If a Democratic judge leaves under a future Republican governor, the same rule runs in reverse. The governor never gets an open field. He gets a menu written by the other side's party officials.
Stein says that's not what the state constitution allows, and he's taken the fight to the North Carolina Supreme Court. Arguments are set for Nov. 10[2]. He's already lost once. In January 2026, the Court of Appeals upheld the law 2-1[3][9]. This is an appeal from that loss, not a fresh lawsuit — a detail easy to miss if you only catch the headline.
What a "Helene Relief" Bill Had to Do With Judicial Appointments
The law at issue is Section 3C.1 of Session Law 2024-57, which most people in North Carolina know by its earlier name: Senate Bill 382[1][3]. The Republican-led General Assembly passed it in December 2024. It bundled Hurricane Helene disaster relief together with a set of changes to how state government works, including the judicial vacancy rule[8]. Then-Gov. Roy Cooper vetoed it. The legislature overrode that veto[1][8].
That packaging matters to how each side tells the story. Republican leaders, Senate leader Phil Berger and House Speaker Destin Hall, describe the judicial provision as part of a "good government" overhaul, arguing it does not upset the separation of powers because the governor still makes the final appointment — he's just choosing from a list, not choosing without one[3]. Stein's office counters that dressing up a limit on gubernatorial power inside disaster relief legislation doesn't change what the limit does[3][8].
A three-judge Superior Court panel sided unanimously with Stein on June 24, 2025, striking the provision down[4][5]. Under North Carolina law, courts start by presuming a statute is constitutional, and a challenger has to prove otherwise "beyond a reasonable doubt"[5]. The trial panel found that bar cleared. The Court of Appeals, seven months later, didn't. Judge Allegra Collins dissented, warning the law tips the balance toward what she called "legislative dominance" over the executive branch[3].
The One Sentence Both Sides Are Reading Differently
Strip away the politics, and this case comes down to interpreting a single clause: Article IV, Section 19 of the state constitution says judicial vacancies "shall be filled by appointment of the Governor," unless the constitution itself says otherwise[1][10]. Stein reads that as complete: the governor chooses, full stop, unless the constitution's own text creates an exception. His lawyers point out that Article IV does carve out exceptions for some judgeships. The legislature can set the process for magistrates, district court, special superior court and emergency judges. The Supreme Court and Court of Appeals are not on that list[2].
Stein also leans on history the legislature can't easily wave away. Voters themselves rejected a 2018 constitutional amendment that would have limited the governor's sole appointment power over judicial vacancies[1]. His argument is straightforward: if voters turned down that change at the ballot box, a legislature can't achieve the same result through an ordinary statute. His office has framed the current process as putting the choice in the hands of "unelected political operatives" rather than the governor[3].
Berger and Hall read the same clause differently. Their position is that the constitution guarantees the governor makes the appointment — and he does, every time, under this law. What the statute regulates is the nominating process leading up to that appointment, which they argue is a legislative choice the constitution doesn't foreclose[3]. The Court of Appeals majority agreed with that reading in January, finding that requiring a party-list shortlist doesn't itself violate separation of powers[3].
The Republicans Who Signed Onto the Other Side
Here's the part of this case that resists a simple partisan read. All five living former North Carolina governors filed a joint brief backing Stein — and two of them, Jim Martin and Pat McCrory, are Republicans[6][12]. A North Carolina constitutional scholar also filed in support of Stein's position[7]. Their argument isn't about who's governor right now. It's that the power belongs to the office itself, regardless of party, and that whoever gives it up today will want it back the next time their own party holds the seat[6].
That's the deeper pressure running under this whole dispute, separate from who's right on the text. Appointed judges take the bench immediately and serve until the next election, which means whoever controls the shortlist can shape the court's balance between elections and hand-pick who runs as the incumbent[10]. A Democratic governor and Republican legislature are fighting over this rule right now. But the rule, once settled, applies to whichever party is out of the governor's mansion next.
That's also why this case isn't happening in isolation. The Supreme Court is hearing it back-to-back with a related dispute, Stein v. Berger, over who appoints members of state boards and commissions, on the same Nov. 10 argument day[2][9]. In that case, Berger and Hall argue the constitution doesn't require the governor to control a majority of appointments to every board or commission the legislature creates[2]. Same underlying question in both cases: how much can lawmakers reshape the mechanics around a power the constitution assigns to the governor.
Where the Coverage Splits, Quietly
Conservative outlets covering this story have mostly stuck to procedure. Carolina Journal, published by the John Locke Foundation, gave prominent headline space to amicus filings favoring Stein, including the constitutional scholar's brief and the five-governor coalition — notable restraint for a right-leaning outlet on a story where the conservative legislature is a party[1][6][7]. North State Journal, also right-leaning, kept its September headline neutral but led its January coverage with "Court rules for NCGA," foregrounding the legislature's win, and repeatedly described the law through its Helene-relief packaging[1][11].
NC Newsline, part of the nonprofit, progressive-leaning States Newsroom network, called the Court of Appeals ruling "the latest lawsuit" over appointment powers — language that frames the case as one entry in an ongoing pattern rather than a standalone dispute. Its story gave prominent space to Stein's "unelected political operatives" quote and to Judge Collins's dissent, while compressing the GOP's "good government" defense into a single line[3]. Courthouse News Service, a nonpartisan legal wire, ran the most neutral coverage of the group, describing the judicial, Utilities Commission and Building Code Council changes side by side without characterizing any of them[8].
What Nov. 10 Actually Settles
Right now, the party-list rule is the law of the land in North Carolina. The Court of Appeals upheld it in January, and it applies to any appellate vacancy that opens before the Supreme Court rules otherwise[3]. Whichever party held a departing judge's seat writes that judge's replacement shortlist — a rule built to cut both ways, whoever controls the governor's office next.
The justices have set aside two and a half hours for arguments in Stein v. Hall and Stein v. Berger together on Nov. 10[2][9]. Both sides have already filed their briefs[1]. What's left is a court that will decide not just who fills a handful of future vacancies, but how much room the legislature has to redesign the machinery around a power the constitution hands the governor by name.
Summary
North Carolina Gov. Josh Stein, a Democrat, has asked the state Supreme Court to throw out part of a 2024 law that limits how he fills vacancies on the state's two highest courts[1]. The provision is in Session Law 2024-57, also known as Senate Bill 382. When a Supreme Court justice or Court of Appeals judge leaves office early, the governor must now pick a replacement from three people. Those three names come from the executive committee of the political party the departing judge belonged to when elected[1][3]. So if a Republican judge leaves, the Democratic governor must choose from a list written by the Republican Party. The Republican-led General Assembly passed the law in December 2024 as part of a Hurricane Helene relief bill and overrode then-Gov. Roy Cooper's veto[1][8].
Stein has lost the most recent round. A three-judge trial panel unanimously struck the provision down on June 24, 2025[5][4]. On Jan. 7, 2026, the state Court of Appeals reversed that ruling 2-1 and upheld the law[3][9]. Both sides have now filed briefs at the state Supreme Court[1]. The court has set aside 2½ hours on Nov. 10 to hear this case together with a related dispute, Stein v. Berger, over appointments to state boards and commissions[2].
The core dispute is over one clause of the state constitution. Article IV, Section 19 says judicial vacancies 'shall be filled by appointment of the Governor' unless that article provides otherwise[1][10]. Stein argues this means the governor alone chooses. He notes that governors have held that power for more than 150 years and that voters rejected a 2018 amendment that would have limited it[1]. Senate leader Phil Berger and House Speaker Destin Hall defend the law as 'good government.' The Court of Appeals majority agreed with them that requiring the governor to pick from a party list does not violate separation of powers, since the governor still makes the appointment[3]. All five living former governors, including Republicans Jim Martin and Pat McCrory, filed a brief backing Stein[6][12].
The Event
Gov. Josh Stein and Republican legislative leaders Phil Berger and Destin Hall have filed briefs with the North Carolina Supreme Court in Stein v. Hall[1][2]. The case challenges Section 3C.1 of Session Law 2024-57, which requires the governor to fill Supreme Court and Court of Appeals vacancies from three names submitted by the departing judge's party[3][9]. Stein is appealing a 2-1 Court of Appeals decision from Jan. 7, 2026, that upheld the provision[3][5]. The Supreme Court will hear arguments on Nov. 10, together with the related case Stein v. Berger[2].
Undisputed Facts
- The Republican-led General Assembly passed Senate Bill 382 in December 2024. It combined Hurricane Helene relief with changes to state government and became Session Law 2024-57 after lawmakers overrode Gov. Roy Cooper's veto[1][8].
- Under Section 3C.1, the governor must fill a Supreme Court or Court of Appeals vacancy from a list of three 'qualified persons' recommended by the executive committee of the departing judge's political party[1][3].
- On June 24, 2025, a three-judge Superior Court panel unanimously ruled the judicial vacancy provision unconstitutional[5][4].
- On Jan. 7, 2026, the NC Court of Appeals reversed that ruling 2-1, with Judge Allegra Collins dissenting[3][9].
- Article IV, Section 19 of the NC Constitution says that, unless otherwise provided in Article IV, vacancies in the offices it creates 'shall be filled by appointment of the Governor'[10][1].
- The NC Supreme Court has scheduled 2½ hours of arguments on Nov. 10 for Stein v. Hall and Stein v. Berger together[2][9].
- Former Govs. Mike Easley, Bev Perdue, Roy Cooper, Jim Martin and Pat McCrory filed a joint court document supporting Stein[6][12].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Divided government
- A Democratic governor faces a Republican legislature that has repeatedly moved appointment powers away from the governor. The judicial provision is one of several changes in SB 382[8][9].
- Seats filled by vacancy
- An appointed judge joins the court right away and holds the seat until the next election[10]. So whoever controls the shortlist can shape the court between elections and pick who runs as the incumbent.
- Constitutional text vs. legislative process power
- The case turns on whether 'shall be filled by appointment of the Governor' leaves room for the legislature to set how nominees are chosen. Stein says no, citing the text and the 2018 vote[1]. The legislature says yes, since the governor still appoints[3].
Material realityThe party-list rule is in force now, because the Court of Appeals upheld it in January 2026[3]. Any appellate vacancy that opens before the Supreme Court rules would be filled under it. The provision applies in both directions: each party writes the list for seats its own judges vacate[1][3]. The ruling on Nov. 10 arguments will also shape the related boards case, Stein v. Berger, which is being argued the same day[2].
Narrative as a weaponStein's office frames this as defending a 150-year-old constitutional power against 'unelected political operatives,' and it uses the bipartisan former-governor brief to argue the issue is about the office, not partisanship[1][3][6]. Legislative leaders frame it as 'good government' and a routine process choice that leaves the governor with the final pick[3]. Both framings leave something out. The shorthand that the law gives 'the legislature' appointment power is inaccurate, because the list comes from party executive committees[1]. Describing Stein as simply asking the court to 'strike down' the law hides that he lost the last round 2-1[3]. The GOP's 'good government' label passes over the fact that the law was enacted by veto override inside a disaster-relief bill[8].
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asStein's case rests on the text of the constitution. Article IV, Section 19 says the governor 'shall' fill appellate vacancies unless the constitution itself says otherwise, and it does not[1]. His lawyers point out that Article IV sets up 'different regimes' for different courts. The legislature may set the process for magistrates, district court, special superior court and emergency judges, but not for the two appellate courts[2]. He also argues from history and from the voters. Governors have held this power for more than 150 years, and voters rejected a 2018 amendment that would have taken it away[1]. In his view, a statute cannot achieve what a failed amendment could not. His office says the constitution gives the choice to 'the Governor, not unelected political operatives'[3].
WhyStein wants to keep the full appointment power his office has had and to stop what he sees as a string of laws moving appointments away from the governor[9][3]. The Stein v. Berger boards case, heard the same day, raises the same theme[2].
Impact on themIf Stein loses, a Democratic governor filling a Republican-held seat must choose among Republican Party nominees, and a future Republican governor would face the same limit on a Democratic seat[3]. That matters because appointees take the bench right away and hold the seat until the next election[10].
Frames it asThe leaders call SB 382 a 'good government' measure that keeps the separation of powers intact[3]. Their key point is that the governor still makes the appointment. The law only sets up how candidates are nominated, and the Court of Appeals majority agreed that this does not violate separation of powers[3]. The design also keeps the party label that statewide voters chose for the seat until the next election. On the related boards case, their lawyers say the constitution does not require the governor to 'control a majority of appointments to every statutory board and commission' that the legislature creates[2]. North Carolina courts presume laws are constitutional, and the challenger must prove otherwise 'beyond a reasonable doubt'[5]. The leaders argue Stein has not met that bar.
WhyThe leaders want to keep the Court of Appeals win and set a precedent that lawmakers can shape how executive appointment powers are used[3][9].
Impact on themA win keeps the party-list rule for future vacancies and makes their position stronger in the related boards case[2]. A loss would restore the governor's sole choice and could weaken similar laws[9].
Frames it asAll five living former governors, Democrats and Republicans alike, say the governor's appointment powers belong to the office, not the party holding it[6][12]. Because Republicans Martin and McCrory signed on, the dispute is harder to dismiss as purely partisan. A North Carolina constitutional scholar also filed in support of Stein's reading of Article IV[7].
WhyThe former governors want to protect the powers of the office they once held for whoever holds it next[6].
Impact on themThey have no direct stake in who wins. Their brief is meant to show the justices that the governor's side has bipartisan support[6][12].
Frames it asThe three-judge trial panel unanimously found the provision unconstitutional 'beyond a reasonable doubt'[5]. At the Court of Appeals, Judge Allegra Collins dissented. She argued that SB 382 tips the balance toward 'legislative dominance' over the executive[3].
WhyThey were ruling on the law as written, not acting as a political side. Their opinions are now part of the record the Supreme Court will weigh[3][5].
Impact on themTheir reasoning shows that three of the six lower-court judges who ruled on the provision sided with Stein, while two did not[5][3].
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The Bias Ledger average rating 2.8
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Carolina Journal | U.S. right (John Locke Foundation) | 2 | Stein, lawmakers offer clues about upcoming NC Supreme Court arguments | The coverage is mostly procedural and balanced. It quotes both sides' briefs directly and gives prominent headlines to pro-Stein amicus filings ('NC constitutional scholar sides with Stein'), even though the outlet is conservative. |
| Courthouse News Service | U.S. center (legal trade wire) | 2 | North Carolina governor sues over legislation changing judicial appointments | The headline is plain and action-based. It groups the judicial, Utilities Commission and Building Code Council changes together without judging them. |
| North State Journal | U.S. right | 3 | Briefs filed in case over gubernatorial judicial appointments | The September headline is neutral. Its January headline, 'Court rules for NCGA on boards, judicial appointments,' leads with the legislature's win, and it describes the law mainly as Helene relief. |
| NC Political News | U.S. center-right (NC political newsletter) | 3 | Five former North Carolina governors back Stein in separation-of-powers cases | Leading with the bipartisan former-governor coalition helps Stein's framing, but the claim is accurate and the headline uses the neutral term 'separation-of-powers.' |
| NC Newsline | U.S. left (States Newsroom nonprofit) | 4 | Appeals Court sides with NC General Assembly in latest lawsuit over appointment powers | Calling it the 'latest lawsuit' frames this as a pattern. The story gives prominent space to Stein's 'unelected political operatives' quote and Collins's 'legislative dominance' dissent, while the GOP 'good government' rationale gets one line. |
References
- Briefs filed in case over gubernatorial judicial appointments — North State Journal · Right-leaning North Carolina statewide paper
- Stein, lawmakers offer clues about upcoming NC Supreme Court arguments — Carolina Journal · Published by the conservative/libertarian John Locke Foundation
- Appeals Court sides with NC General Assembly in latest lawsuit over appointment powers — NC Newsline · Nonprofit in the progressive-leaning States Newsroom network
- Judges favor Stein on judicial vacancies, lawmakers on Utilities Commission appointment — Carolina Journal · Published by the conservative/libertarian John Locke Foundation
- Stein v. Hall (COA25-745) — CourtListener (Free Law Project) · Nonprofit court-records archive; primary source
- Former NC governors all back Stein in cases at top state court — Carolina Journal · Published by the conservative/libertarian John Locke Foundation
- NC constitutional scholar sides with Stein in judicial vacancy dispute — Carolina Journal · Published by the conservative/libertarian John Locke Foundation
- North Carolina governor sues over legislation changing judicial appointments — Courthouse News Service · Nonpartisan legal-news wire funded by subscriptions
- NC Supreme Court takes two cases pitting Stein against top lawmakers — Carolina Journal · Published by the conservative/libertarian John Locke Foundation
- NC Constitution - Article 4 — North Carolina General Assembly · Official government text; primary source
- Court rules for NCGA on boards, judicial appointments — North State Journal · Right-leaning North Carolina statewide paper
- Five former North Carolina governors back Stein in separation-of-powers cases — NC Political News · North Carolina political newsletter, center-right