NC constitutional scholar sides with Stein in judicial vacancy dispute ## CJ Staff September 9, 2026 John Orth (image from law.unc.edu) Listen to this story (5 minutes) - A University of North Carolina law professor who has written a book about the state constitution is siding with Gov.
carolinajournal.com · Mitch Kokai · September 9, 2026
NC constitutional scholar sides with Stein in judicial vacancy dispute
## CJ Staff
September 9, 2026
John Orth (image from law.unc.edu)
Listen to this story (5 minutes)
- A University of North Carolina law professor who has written a book about the state constitution is siding with Gov. Josh Stein in a constitutional dispute with top legislative leaders. - Professor John Orth argues in a new court filing that the state constitution does not give state lawmakers authority to limit Stein's appointments to the state Court of Appeals and Supreme Court. - Orth co-wrote "The North Carolina Constitution, Second Edition" in 2013 with current state Supreme Court Chief Justice Paul Newby, who will hear arguments in the case in November.
A University of North Carolina law professor who co-wrote a book on the state constitution with the state Supreme Court’s chief justice is siding with Gov. Josh Stein in a dispute now sitting before the state’s highest court.
Professor John Orth filed paperwork Tuesday seeking to file a friend-of-the-court brief in cases pitting Stein against Republican legislative leaders.
Orth supports Stein’s argument that the General Assembly lacks the authority to place new limits on the government’s power to fill statewide judicial vacancies.
“The issue in this case is whether the North Carolina Constitution authorizes the General Assembly to impose restrictions on the Governor’s power to fill vacancies on the State’s appellate courts under Article IV, Section 19,” according to the court filing from Orth and Charles Plambeck, a UNC adjunct law professor.
“The General Assembly’s enactment of Session Law 2024-57, Section 3C.1.(a) limited the Governor’s power to selecting candidates from a ‘list of three qualified persons recommended by the political party executive committee of the political party’ associated with the vacating judge,” the filing continued. “The amicus brief will address whether the North Carolina Constitution supports the General Assembly’s enactment of this provision. Professor Orth and Professor Plambeck argue that it does not.”
Orth has taught at the UNC law school since 1978. Among his six books is “The North Carolina Constitution, Second Edition,” a 2013 volume co-written with Chief Justice Paul Newby.
Stein’s lawyers submitted a Sept. 2 brief outlining their own concerns about the law limiting the governor’s ability to fill vacancies on the state Court of Appeals and Supreme Court.
“Article IV of our Constitution erects different regimes for filling vacancies in different judicial offices,” Stein’s lawyers wrote in the brief. “The General Assembly may prescribe the process for filling vacancies in some offices, like Magistrates and District Court, Special Superior Court, and Emergency Judges. But for vacancies in other judicial offices, including the Judges and Justices of our Court of Appeals and Supreme Court, the plain text of the Constitution gives the Governor exclusive appointment power and explicitly prohibits the General Assembly from prescribing a different process.”
“That is why in their seminal treatise on the North Carolina Constitution, Chief Justice Newby and Professor Orth explain that the Constitution gives the Governor an ‘unfettered power of appointment’ for appellate judicial vacancies,” the court filing continued.
“Notwithstanding the plain text and well-settled understanding of Article IV, shortly after voters elected Josh Stein Governor, a lame duck General Assembly chose to simply ignore the Constitution and enact a law that forces the Governor to fill appellate court vacancies with judges selected not by him, but by unelected political operatives,” Stein’s lawyers wrote.
The disputed law, Senate Bill 382 from 2024, requires Stein to replace a departing judge or justice with one of three names recommended by that jurist’s political party.
A three-judge panel blocked the change, ruling that it “facially violates Article IV, Section 19,” Stein’s lawyers explained. The state Court of Appeals reversed that ruling.
“The Court of Appeals erred,” Stein’s lawyers argued. “The majority decision failed to honor the framers’ deliberate choice to allow the General Assembly to set the process for filling some judicial vacancies but give the Governor the exclusive power to fill others.”
Top legislators will respond to Stein’s arguments in written brief due Oct. 9.
Newby and his state Supreme Court colleagues have set aside 2 ½ hours on Nov. 10 to hear oral arguments in cases titled Stein v. Berger and Stein v. Hall.
In addition to the dispute over judicial vacancies, the cases also involve laws that removed some of the governor’s appointments to multiple state boards and commissions.