This week, North Carolina’s top court heard arguments from attorneys representing Gov. Josh Stein (D) and two Republican legislative leaders, Speaker of the House Destin Hall, and Senate President pro tempore Phil Berger.
The two cases before the court, Stein v. Berger and Stein v. Hall, center on a dispute between North Carolina’s executive and legislative branches over appointment powers, with rulings that could have lasting implications for the balance of power in state government and future legislation.
For much of the state’s history, these disputes have not been common until the last decade or so, retired Justice Bob Orr said.
“It was pretty rare to get cases where the governor and the legislature were in conflict as far as appointment power,” Orr told Cardinal & Pine. “ It was pretty stable up through [2016], when the Republicans took over the Legislature and you had a Democratic governor.”
After Roy Cooper won the 2016 gubernatorial election, Republicans controlling the legislature passed bills limiting his appointment powers over the State Board of Education and to the boards of trustees at UNC System universities. Cooper’s appointments were reduced from 1,500 to 300. The laws were signed by then-Gov. Pat McCrory (R), whom Cooper defeated.
Stein is asking the court to reverse appellate court rulings favoring the Legislature.
One of Stein’s arguments is that Senate Bill 382, a 2024 law, undermines his constitutional appointment power.
The outcome will have key implications for the separation of powers, as the Supreme Court of North Carolina is the “court of last resort” at the state level.
More eyes focused on the court
The 5-2 Republican majority may face increased scrutiny in the wake of this month’s midterm election results, which saw Democratic Justice Anita Earls reelected to the court in a landslide. Democrats also won all three Court of Appeals races.
Eric Holl, the North Carolina director of the Justice Project, a nonprofit focused on judicial elections, believes the public is paying more attention to the courts at the moment.
“Voters are fed up with big corporations working with politicians to rig the system and increase our bills,” Holl told Cardinal & Pine in a statement. “Unfortunately, the Court’s Republican majority has consistently ruled in favor of Duke Energy under Chief Justice Paul Newby—who owns a significant amount of Duke Energy stock.”
Duke is a highly profitable company and among the largest utility providers in North Carolina and the South.
Some argue if a judge has investment in a company, they should recuse themselves from hearing a case involving the company.
“ It’s just the most simple and most reasonable and fair thing […]to recuse yourself from that case. I don’t think that’s an unreasonable ask,” Dan Crawford, the Senior Director of Public Affairs for the North Carolina League of Conservation Voters (NCLCV), told Cardinal & Pine.
Duke has contributed significantly to Berger, Hall, and state Sen. Ralph Hise, one of the most influential Republican lawmakers. The company, through its political action committee (PAC), has contributed around $200,000 over their careers.
Crawford said the outcome of the cases could have long-term implications.
“It’s not the most glamorous. It’s not getting all the spotlight, but it really could set precedent on how the court rules and I think, just as we say here at NCLCV, who you elect matters” Crawford said.
North Carolina residents can search campaign finance records for lists of donors to individual campaigns and the amounts contributed by individuals and organizations.
Concern about the court’s future
Looking ahead, Orr believes the court faces two key pressure points: the influence of partisanship and the influx of money into judicial elections.
“A genius of the framing of the Constitution and the creation of separation of powers was that we would have an independent judiciary to determine the constitutionality of acts of the General Assembly or actions of the governor. And it would be done, as I said, on an independent basis,” Orr said.
Reflecting on his tenure, Orr said the court was more cooperative then, with friendships existing across ideological lines.
“We ate lunch together. We talked about politics together. We talked about college sports together, talked about our families,” he said. “ Sometimes I’d vote with the Democrats, sometimes a Democrat would vote with me on a dissent.”
