Ask Jordan: Will the Supreme Court ‘entertain’ Trump’s E. Jean Carroll letter?

Ask Jordan: Will the Supreme Court ‘entertain’ Trump’s E. Jean Carroll letter?

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“In a recent column, you wrote that one of Donald Trump’s personal lawyers had written to the Supreme Court justices ‘to suggest that they “may wish to consider the petitions together” once the upcoming one is filed’ in the E. Jean Carroll appeal. How is that legal? Does the Supreme Court entertain these sorts of communications?” — LG

Hi LG,

It is common practice for lawyers to alert courts to relevant developments in their cases. Supreme Court practice is no exception.

While it’s perfectly legal to write such letters, the degree to which the justices “entertain” them can be hard to pinpoint. They aren’t formal motions that the court either grants or denies. Rather, they aim to bolster the positions that the lawyers were already pressing. Therefore, it can be tough to isolate a letter’s effect, if any, in the context of the broader case in which it appears. The recent letter in Trump v. Carroll is a good example of that, for reasons I’ll explain below.

First, some background to help understand the letter’s significance (and potential insignificance) in the context of this complex litigation.

There are two separate but related civil cases that Carroll brought against Trump. They both stem from her claim that he assaulted her in a department store dressing room decades ago and defamed her about it in 2019 and 2022.

In one of the cases, a jury in 2023 awarded her $5 million in damages after finding Trump liable for sexual abuse and for defamation over his 2022 statements. In the other, a jury in 2024 awarded her $83.3 million in defamation damages over his 2019 statements.

The $5 million case is further along in the appellate process, with the president’s Supreme Court petition pending for months, but the court keeps putting off its decision on whether to grant review.

The court doesn’t explain why it reschedules petitions.

But even before Trump filed the letter in question, I speculated that some justices may want to put off deciding whether to review the first petition until the second one is before them. The second case involves statements Trump made while he was in his first term as president, and his appeal in that one raises issues, including presidential immunity, that the justices may be more interested in than the issues raised in the already pending petition, which centers on more legally mundane complaints about the evidence used against him at trial.

At any rate, even if there isn’t direct legal overlap between the two cases, the court may want to deal with them together.  

It’s against that backdrop that we saw the June 2 letter from Trump lawyer Justin Smith, whom the president has nominated to be a judge on the St. Louis-based U.S. Court of Appeals for the 8th Circuit. Smith works for the law firm (also based in St. Louis) founded by John Sauer, which has represented Trump in several matters, including the Carroll litigation and the criminal immunity appeal that Sauer argued to the justices in 2024. Sauer is one of several of Trump’s personal lawyers now serving in top Justice Department posts; he is the solicitor general, the DOJ’s top lawyer representing the United States at the Supreme Court.

Smith’s letter is only a paragraph, so I’ll quote it while adding context in brackets and skipping over case citations. It says:

I write to advise the Court that President Donald J. Trump intends to file a petition for a writ of certiorari [asking the justices to grant review] in [the $83.3 million case] within the next month. Because [the $83.3 million case] involves the same parties and overlaps with the President’s pending petition for a writ of certiorari in [the $5 million case], the Court may wish to consider the petitions together. Like the pending petition in [the $83.3 million case], [the $5 million case] arises from decisions by the Second Circuit [New York-based federal appeals court], which recently denied rehearing en banc [by the appeals court’s full slate of judges after a three-judge panel ruled against Trump] in [the $83.3 million case,] over the dissent of three judges[, two of whom were appointed by Trump and one of whom was appointed by George W. Bush].

In a nutshell, the letter tells the justices: Heads up, the second petition is coming soon. As you note, it also says the court “may wish to consider the petitions together.”

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But the letter doesn’t directly ask the court to do anything. To the extent that it’s asking for something, it’s essentially urging the court to not deny review of the $5 million petition before the justices have a chance to consider it alongside the $83.3 million petition. But Trump was already seeking review in the $5 million case, so the letter isn’t really asking for anything new in that regard.

Plus, when Trump filed the $5 million petition back in November, it was apparent that the $83.3 million case would eventually come to the justices too, but the appeals court hadn’t ruled against Trump in that one yet. The justices were already formally aware of the $83.3 million case before Smith’s letter because it’s discussed in the $5 million case petition.

Because the court doesn’t explain its scheduling moves, we can’t say for sure why it has been delaying consideration of the $5 million petition. For now, all we can definitively say is that the justices were not unanimous about immediately wanting to deny review, as they do for most petitions. That’s a better signal for Trump than it is for Carroll, though it doesn’t dictate whether the court will ultimately grant review, which requires the votes of at least four justices. Nor does it dictate how a majority would rule if the court does grant review.  

As I noted above, the effect of Smith’s letter, if any, is difficult to isolate. The court had already been putting off considering the $5 million petition for months before he effectively asked the justices to keep doing so until the next petition comes. So, if the court keeps putting it off, then it will be hard to know whether it’s doing so because of Smith’s letter or because the court is doing what it was going to do anyway.

On that note, the court rescheduled the petition yet again this week, further suggesting that it is waiting for the second petition. Whether Smith’s letter had any role in the latest rescheduling is hard to say because the court has continued the delay it had already been conducting.  

After the second petition is filed (Smith said in the June 2 letter it would come “within the next month”), Carroll will have an opportunity to respond, and the court is about to break for the summer after it finishes issuing the term’s remaining opinions over the next few weeks.

Therefore, we may not know whether the court is going to grant review in either petition until the fall. And even if the already pending petition were to be granted soon, the case wouldn’t be argued and decided until the next court term, which starts in October. At this point, it would be surprising if the court acts on the pending petition before receiving the second one.

All in all, it may be a while before we know the fate of these cases and whether Carroll can collect on the damages she won or whether the court will help the president again.

Please submit “Ask Jordan” questions through this form for a chance to have your question featured in a future edition of the Deadline: Legal Newsletter.

Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.

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