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The Supreme Court's four more liberal justices (and three others) all joined Chief Justice John Roberts's June 22 opinion asserting that a key provision of the iconic Voting Rights Act of 1965, Section 5, has become so problematic that it "raises serious constitutional questions."

Wow. How did Roberts get the four liberals to sign on to that, with nary a word of dissent or qualification? And why didn't Roberts and the four other more conservative justices strike down Section 5, as was widely expected?

The conservatives, and the swing-voting Anthony Kennedy, seemed hostile to Section 5 during the April 29 oral arguments. Meanwhile, the four liberal justices defended its extraordinarily intrusive requirement that nine states, most of them Southern, and parts of five others seek "preclearance" by the Justice Department or a special court before making even the minutest change in their voting rules.

But when the decision came down, it was a surprise. Justice Clarence Thomas predictably argued for striking down Section 5, but the eight others sidestepped what Roberts called the "difficult constitutional question" at the heart of the case. They agreed instead that the Texas municipal utility district that had challenged Section 5 should have been allowed to seek a "bailout" permitted under a provision of the law.

Theories as to what went on behind the scenes in Northwest Austin Municipal Utility District v. Holder have been ricocheting among experts. One is that Roberts would have held Section 5 to be unconstitutional but did not have five votes, and thus had to compromise.

I doubt that. I find it hard to believe that Roberts wanted to visit a constitutional cataclysm upon a body politic already struggling with multiple crises. I also doubt that he relished the prospect of headlines like "Court Tears Heart Out of Voting Rights Act." He was surely aware that such a decision would have been widely denounced as conservative judicial activism with at best a tenuous connection to the Constitution's original meaning.

Rather, I think that the chief justice showed the kind of "judicial modesty" in pursuit of consensus that he preached as a nominee but has not always practiced. The seven others who joined him also deserve credit.

I doubt that Chief Justice John Roberts relished the prospect of headlines such as "Court Tears Heart Out of Voting Rights Act."

To be sure, their decision hinged on a species of judicial activism, as explained below. But it was the sort of activism that can also be called judicial statesmanship.

Roberts's success in getting seven other justices to join his opinion also calls to mind a private remark by Justice William Brennan 21 years ago. "No chief justice in history has ever gone down as a great one who didn't succeed in massing the Court," Brennan told me during a visit to his chambers. He explained that an "extraordinary responsibility falls on the shoulders of the chief justice to come as close as we can to unanimity" and to "accommodate his views to those of the majority when he can," so that the Court's decrees will be "more readily accepted."

The justices have also sent Congress a clear message: Fix the constitutional problems, or Section 5 may be doomed. Those constitutional problems should not be that hard for Congress to fix.

The eight majority justices asserted that this supposedly "temporary" provision -- extended by Congress three years ago until 2031 -- "imposes substantial 'federalism costs.' " And that "things have changed in the South" since 1965. And that "blatantly discriminatory evasions of federal decrees are rare." And that "minority candidates hold office at unprecedented levels." And that "the racial gap in voter registration and turnout" -- the central problem that Section 5 was originally intended to address -- "is lower in the states originally covered by Section 5 than it is nationwide." And that Section 5's past success is not by itself "adequate justification to retain the preclearance requirements," because the provision "imposes current burdens that must be justified by current needs." And that Congress had made the bailout provisions "all but a nullity" by imposing an almost insuperable burden of proof even on the minority of states and political subdivisions that have traditionally been deemed eligible to invoke them.

The liberal justices, if forced to decide the constitutional issue, would almost certainly vote to uphold Section 5, if only out of deference to the extraordinary enforcement powers granted to Congress by the 14th and 15th Amendments. So it was especially striking that they nonetheless signed on to every objection in the Roberts opinion.

This act of statesmanship (as I see it) by the liberals should help dispel exaggerated suggestions by civil-rights activists that but for Section 5, minority voters in the South would once again face rampant disenfranchisement on racial grounds.

An adequate bailout provision would enable jurisdictions with clean records to remove themselves from Section 5.

In fact, racist disenfranchisement has become rare. In recent decades, the Justice Department's most important use of Section 5 has not been to prevent disenfranchisement but rather to press states and localities to gerrymander safe districts for black, Hispanic -- and also white Republican -- politicians, especially incumbents. As Roberts noted, some of these gerrymanders have been so extreme that the Court has found them to be unconstitutionally race-based. (See "The Voting Rights Act And Its Wrongs," May 2.)

The justices' decision "saved Congress from itself," says Richard Pildes, a professor at New York University Law School, by "aggressively contorting" the language of the bailout provision just enough to find the Texas utility eligible to apply.

The text of the law seemed to limit eligibility to states, counties, and jurisdictions that -- unlike the Texas utility district -- register voters. Or so thought the lower court, the Justice Department, and experts including Pildes. But he nonetheless sees the Supreme Court's contrary ruling as a salutary bit of "statutory activism" in the cause of "avoiding the larger 'constitutional activism' of holding the act unconstitutional."

What happens next? We may yet see a bitterly divided Court strike down Section 5 in the next two to five years, as many experts predict. But that is likely to happen only if Congress once again refuses to ease the burdens imposed by the provision on jurisdictions that have no recent history of disenfranchising minority voters.

That's what lawmakers did in 2006 by extending Section 5 for a quarter-century without updating it to reflect the fact that, as the justices stressed in this week's decision, it's not 1965 anymore, and "we are now a very different nation." Indeed, the only significant amendments that Congress added in 2006 sought to override recent Supreme Court decisions by pushing for even more incumbent-protecting racial gerrymanders.

Looking to the future, one way for Congress to alleviate the justices' constitutional concerns would be to update the law's 37-year-old formula for determining which states and other jurisdictions should be covered by Section 5, so as to release those that have good records and extend coverage to new jurisdictions outside the South that have bad records. But any such amendment would be extremely difficult politically. The same members of Congress from outside the South who like to say that Section 5 imposes no great burdens would furiously oppose any effort to extend those burdens to their own turf.

A more politically feasible reform would be for Congress to make it much easier for states and other jurisdictions with good records to bail out on an individual basis. Such an amendment should specify that, among other things, a bailout cannot be denied based solely on Justice Department objections to a redistricting plan.

Bailing out of Section 5 is so difficult that only 17 of the more than 900 jurisdictions traditionally deemed eligible to apply have actually succeeded. No state has done so. Although this week's decision made an additional 11,000 jurisdictions eligible, the process and burden of proof remain onerous. For example, a state cannot bail out unless it can prove not only that the state itself has not engaged in any discriminatory voting practice over the past 10 years but also that not one county, city, town, school board, water district, or other jurisdiction in the state has done so.

Would an adequate bailout provision be enough to satisfy one or more of the five justices who appear to consider Section 5 unconstitutional as currently written? I think so. It would not by itself lift the Section 5 burden from any covered jurisdiction, but it would enable those with clean records to remove themselves from the provision. It would also focus Justice Department attention on those places where racial disenfranchisement remains a real danger.

If, on the other hand, Congress continues to play constitutional chicken with the justices, and if they then respond by striking down Section 5, will the greater fault lie with judicial activism -- or with congressional cynicism?