June arrives on Friday and with it comes the beginning of the final stretch of the Supreme Court term—assuming, of course, that the justices wrap up the term by the end of the month. After issuing three decisions on Tuesday, the court has 29 cases awaiting final rulings. We take a look at one of the term's infrequent DIGs(dismissed as improvidently granted) and a blow to corporations and others hoping to recover attorney and other professional fees under the Mandatory Victims Restitution Act. The late Chief Justice John Marshall's likeness is popping uparound the court building and former Solicitor General Donald Verrilli shares some tough words about President Trump with law school graduates.

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Dig This: SCOTUS Drops Fifth Amendment Case

The court's decision Tuesday to dismiss City of Hays, Kansas v. Vogt could have been predicted—and some commentators actually did predict it, as soon as the case was argued in February.

One of the advocates who argued the case even explicitly invited the justices to do it. “If this court wanted to [dismiss] the case as improvidently granted, we would certainly not object,” said Kelsi Corkran, a partner at Orrick, Herrington & Sutcliffewho represented Matthew Vogt, the respondent who stood to benefit from such an outcome.

Still, the dismissal of an argued case comes as a surprise because it is so rare. It happens a couple of times per term, almost always after oral argument.

➤➤ Legend has it that for every dismissed case, one of the justices' law clerks lands in the doghouse, figuratively speaking, for having recommended the case for review in the first place. The clerk's crime is missing flaws in the case ahead of time—inadequate record, a jurisdictional defect, that kind of thing. When justices begin to study the briefs or hear arguments, they suddenly discern the defects and begin to wonder, “Why are we here?”

That was the case in Hays, a test of the Fifth Amendment's protection against forced self-incrimination. At issue was whether the Fifth Amendment is violated when incriminating statements are used at a probable cause hearing, not at a criminal trial.

But the context bordered on the bizarre.

Vogt, a police officer, made his incriminating statements during a job interview for another a police department position—not a typical police interrogation. All sorts of other procedural baggage came with the case as it made its way to the Supreme Court.

“This is a very odd case,” Justice Samuel Alito Jr. said during argument, and Justice Sonia Sotomayor agreed—not a good sign. The biggest predictor of trouble came when Justice Stephen Breyer asked a key question about the procedural history of the case. When Corkran said “none of that is in the record,” Chief Justice John Roberts Jr. blew up, disparaging the use of non-record statements of fact. He let the questioning continue, but added, “I will discount the answers because it's not something that's in the record.”

In a statement, Corkran said she was pleased by the court's action. “The court's decision to dismiss is a victory for our client, Officer Vogt, who is now free to pursue his civil rights claim on remand.”

With the case dismissed from the court's docket, it may be best known for the fact that all three lawyers who argued were former clerks of one justice: Ruth Bader Ginsburg. Arguing against Corkran were Toby Heytens, now Virginia's solicitor general, and Elizabeth Prelogar, assistant to the U.S. solicitor general who has been detailed to the legal team of special counsel Robert Mueller.

Corporations Denied “Victim” Fees for Internal Probes of Wrongdoing

The U.S. Justice Department's arguments failed to carry the day Tuesday in the Supreme Court for General Electric Capital Corp. and others hoping to recover legal fees and costs under the federal Mandatory Victims Restitution Act for their own private investigations into criminal acts against them.

GE spent about $5 million in fees for lawyers, accountants and consultants in its investigation into a fraud that led to prosecution and conviction of Sergio Fernando Lagos. The federal government indicted Lagos, who pleaded guilty to wire fraud. The trial judge ordered Lagos to pay GE restitution for expenses it incurred during its investigation and participation in the bankruptcy proceedings involving Lagos' company.

What was the issue? Whether the words “investigation” and “proceedings” in the 1996 act are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings.

Justice Stephen Breyer, in a unanimous opinion in Lagos v. United States, concluded the words are limited to government investigations and criminal proceedings. “Our conclusion rests in large part upon the statute's wording, both its individual words and the text taken as a whole,” Breyer wrote.

GE and others like it are not completely without recourse, Breyer said.

“GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him,” he wrote. “The Government says that GE has largely been unable to collect on that judgment, but there is no reason to think that collection efforts related to a criminal restitution award would prove any more successful.”

Harry Sandick, a former assistant U.S. attorney and now partner at Patterson Belknap Webb & Tyler, said, “The court seems to recognize that its decision is not required by statutory text, but it decided the case in part based on the 'significant administrative burdens' that a contrary rule could create. It is not clear, however, that such burdens existed in the several circuits in which this has been the rule for as long as a decade, and the court recognized that its decision was contrary to the broad purpose of the statute. In any event, Congress can amend the statute if it wishes, in order to resolve the issue raised in Lagos.”

➤➤ The ruling was the second win this term for Stris & Maher partner Daniel Geyser. He also successfully argued U.S. National Bank Association v. Village at Lakeridge. He lost to Williams & Connolly partner Kannon Shanmugam in Digital Realty v. Somers.

Stuart Banner of UCLA School of Law Supreme Court Clinic filed an amicus brief supporting Lagos on behalf of the National Association of Criminal Defense Lawyers. Also supporting Lagos was Georgetown University Law Center's Shon Hopwood, represented by Gregory Lipper of Clinton Brook & Peed. Assistant to the Solicitor General Michael Huston argued for the government.

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Verrilli's Commencement Address at Loyola

Former Obama-era solicitor general Donald Verrilli Jr. was the recent commencement speaker at Loyola Law School, Los Angeles. Here's a snippet from his prepared remarks, which didn't shy from commentary on the Trump presidency:

“We have a president who tries every day to undermine the public's confidence in the rule of law—who sows doubt about the integrity of the women and men of the Department of Justice and the FBI (women and men whose integrity and commitment to public service I saw up close every day for the better part of eight years when I was in the government), a president who demands that his political adversaries be thrown in prison, who attacks the integrity of judges when they rule against him. We have racists and Nazis marching with torches in Charlottesville Virginia chanting 'blood and soil' like they did in Germany in the 1930s, and a president who refuses to call them what they are. We have unprecedented attacks on the free press, criticism dismissed as 'fake news' and critics threatened with financial ruin. And some version of this occurs virtually every day, to the point that it is now defines what is normal in our political discourse.”

The speech was the latest for the former SG and now Munger, Tolles & Olsonpartner. In recent years, Verrilli's spoken at Wayne State University Law School, Boston University School of Law and the University of Iowa College of Law, among other commencement venues. Read the full Loyola address here.

John Marshall Is Everywhere at SCOTUS

Last week we reported that the court has acquired an 1830 portrait of Chief Justice John Marshall from the collection of the now-closed Corcoran Gallery. It will be the third Marshall portrait to adorn the walls of the court, along with three other depictions in the form of architectural features, friezes, busts and statues.

Thanks to the court curator's office, we have since learned about at least four other images of Marshall inside the building—on the north frieze inside the courtroom, a wax bust, a bronze relief, and even a lithograph.

So why is Marshall such a popular guy at the Marble Palace? We reached out to Joel Richard Paul, professor at University of California Hastings College of the Law and author of the latest biography of Marshall. Some of Paul's thoughts:

“John Marshall's contributions as chief justice were unequalled and without precedent … His capacity for forging compromises on the Court enabled him to establish the foundational principles of American law. He affirmed the principle that the Court could review the actions of the president as well as Congress. He established the supremacy of federal law and treaties and of the federal courts over the states. He defended the independence of the judiciary and the rule of law from attack by the Republicans, and he upheld the right to criticize the government without fear of retribution … No one in the founding generation left a more enduring imprint on our government and our law.”

Paul's book, by the way, is “Without Precedent: Chief Justice John Marshall and His Times.”

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More SCOTUS Reading: In Case You Missed It

• Are there any writing-style lessons from Justice Neil Gorsuch's majority ruling in Epic Systems? [SCB]

• Plaintiffs lawyers are plotting a way around the Supreme Court's ruling against worker class actions. Hello, “non-mutual offensive collateral estoppel.” [SCB]

• Kirkland & Ellis partner Paul Clement says the Supreme Court should take up a dispute involving a tweeting federal judge, but the SG's office says not so fast. [SCB]

• Am Law Litigation Daily honors Paul Clement as “litigator of the week” for his winning argument in Epic Systems. [Litigation Daily]

• “When Supreme Court justices lack an understanding of what technology means for the lives of the people affected by their decisions, they will struggle to respond effectively to technological change.” [FiveThirtyEight]

• Paul Manafort's defense lawyers take the Supreme Court's car-rental privacy ruling for a test drive. [SCB]

• The U.S. solicitor general's office wants the court to take up a petition filed by Merck & Co. asking to reverse the reinstatement of more than 500 cases brought over osteoporosis drug Fosamax. [SCB]