"There's loads of room for judgment. The judges do judge."

Justice Breyer talks to Nina Totenberg about his new book, "Active Liberty." Totenberg does a nice job of challenging him -- after he's emphasized the democratic process over constitutional limitations -- by citing laws against abortion and laws regulating homosexual behavior, which the majority tries to enact and the Court insists on striking down. Breyer responds, conceding, as he must, that it's not all about the majority, that there are also constitutional rights for individuals and minorities, and that the judge still must do the hard work of drawing the lines: "There's loads of room for judgment. The judges do judge."

He doesn't talk about it in the interview, but presumably in the book, he uses the principle of democracy to define the scope of countermajoritarian rights. That's the real test of his theory, and that's where all the problems arise.