Roberts: Congress Can Bar Discrimination

Chief Justice nominee told Ted Kennedy that, yes, Congress can pass laws barring discrimination on grounds of race and sex.

Roberts: Congress Can Bar Discrimination (AP)

Supreme Court nominee John Roberts, on a glide path toward Senate confirmation, said Thursday that Congress has the authority to pass laws barring discrimination based on race, gender and disability. On the third — and abbreviated — day of questions, Roberts responded with a repeated “Yes, Senator” to Edward M. Kennedy’s questions on whether Congress has the power to act to thwart discrimination.


Kennedy pressed Roberts, a political appointee in the Reagan and first Bush administrations and later a multimillion-dollar lawyer, about his record on minority issues and whether he could ensure the rights of society’s less fortunate. Roberts said he had argued cases in favor and against affirmative action and noted that he participated in a program to assist minority students considering law school. “Yes, I was in an administration that was opposed to quotas,” Roberts told the Massachusetts Democrat. “Opposition to quotas is not the same thing as opposition to affirmative action.”

Roberts’ restraint here is positively judicial. One can add an implied “you idiot” to the ends of those sentences.

Someone acting as a lawyer–that is, an advocate for a client’s position–will naturally act differently than a judge, who is supposed to be a neutral arbiter. And, as to whether Congress can pass laws to against discrimination, one only needs to know that they have and that there is this thing called the 14th Amendment.

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Now, of course, this doesn’t tell us whether any particular statutory means of preventing discrimination passes constitutional muster.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. 14th allows for Congress to regulate discrimination at the state level.

    But it’s the 13th that allows Congress to ban private racial discrimination as a “badge or incident of slavery.”

  2. James Joyner says:

    Well, there haven’t been a lot of incidents of slavery lately. . .

  3. DL says:

    If congress can BAR anything it certainly will attract the senator from Massachus-ettes (Not mispelled -just feminized the word to provide gender balance.)

  4. Kent says:

    Now, of course, this doesn’t tell us whether any particular statutory means of preventing discrimination passes constitutional muster.

    Well … actually … it does. It makes the constitutionality of affirmative action highly suspect.

  5. bryan says:

    Actually, to be quite the contrarian on this, Congress can’t “bar” discrimination, as the headline states, anymore than they can “bar” speeding or using illegal drugs. They can make such conduct illegal if caught.