Bench Memos

Law & the Courts

Judicial Winning: Jay Richardson

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Before being picked by President Trump to serve as a judge on the U.S. Court of Appeals for the Fourth Circuit, Julius (Jay) Richardson was known as one of the most talented prosecutors in the country. After clerking for Chief Justice Rehnquist and spending three years as a litigator at a top law firm in Washington, D.C., Richardson became an assistant United States attorney in his home state of South Carolina. There, he championed efforts to tackle public corruption. He also led the team that sought and won the death penalty in the trial of Dylann Roof, a white supremacist who killed nine African Americans during a Bible study in Charleston.

Since becoming a judge, Richardson has promoted the rule of law and the limited role of courts within our constitutional system. Take for instance Mayor and City Council of Baltimore v. Azar, decided on September 3 by the full Fourth Circuit. The case dealt with Title X of the Public Health Service Act, which allows the federal government to provide grant funding for family planning programs.

In 2019, the Trump Administration issued a rule requiring any programs receiving Title X funding to be physically and financially separate from abortion providers such as Planned Parenthood. The rule also prohibited funding recipients from referring clients for abortions.

In a bizarre opinion, the majority held that the rule was arbitrary, capricious, and beyond the scope of the executive branch’s authority. Judge Richardson dissented and was joined by five of his colleagues, including fellow Trump appointees A. Marvin Quattlebaum and Allison Jones Rushing. He noted that the administration’s rule “substantially return[ed] the Title X regulations to the version” in force in 1988 and that the Supreme Court upheld the 1988 rule as permissible in Rust v. Sullivan (1991). In reaching the opposite conclusion about the 2019 rule, Judge Richardson explained, “the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President.”

It is a bedrock principle of law that a court may not impose its own preferred policy outcome on a federal agency. Judge Richardson emphasized that the administration “spoke with the force of law” when it issued the rule, because Congress explicitly authorized the executive branch to decide how and under what conditions to grant Title X funds. Additionally, Section 1008 of Title X clearly states that “none of the funds appropriated under this subchapter shall be used in programs where abortion is a method of family planning.” The 2019 rule was reasonably designed to ensure that no federal funds would be used by abortion providers, as Congress requires. Indeed, the Supreme Court confirmed as much by holding that a virtually identical version of the rule is permissible. The 2019 rule should therefore have been upheld.

In the span of two years on the bench, Judge Richardson has already gained a reputation for being a thoughtful and principled judge. By emphasizing judicial restraint and a faithful adherence to the law, he serves as a great role model for new judges across the country.

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