Bunting v. Mellen
The Supreme Court declined to hear an appeal over whether the Virginia Military Institute's supper prayer, which nonpraying cadets had to stand respectfully through, violated the Constitution. The lower appeals court had found the prayer unconstitutional but let the sued official off the hook because the law wasn't clearly established at the time.
Justice Stevens explained the Court had no live case left to decide because the cadets had graduated and the official had retired, while Justice Scalia dissented, arguing the Court's own rules unfairly let this kind of constitutional ruling escape review whenever the government official wins on a technicality.
How it got here: A federal trial court ruled the prayer unconstitutional; the Fourth Circuit agreed but granted the sued official qualified immunity; VMI's officials asked the Supreme Court to review, which it declined.
The Case in Depth
What happened
Cadets at the Virginia Military Institute, a state military college, sued the school's Superintendent, Josiah Bunting, arguing that VMI's tradition of an invocation before the evening meal, during which nonpraying cadets had to stand respectfully at rest, violated the Constitution's ban on government establishment of religion. They sought a court order stopping the practice as well as money damages.
The question before the Court
Should the Supreme Court have reviewed a ruling that a military college's mandatory supper prayer was unconstitutional, even though the officer who was sued had already won on qualified immunity?
Why it matters
The denial leaves in place a rule that VMI's supper prayer violated the Establishment Clause, without letting VMI or its officials challenge that constitutional ruling before the Supreme Court. The dissent's warning highlights a broader problem: government officials who win lawsuits on qualified-immunity technicalities may have no way to appeal unfavorable constitutional rulings that still bind them going forward.
What changes now
Because certiorari was denied, the Fourth Circuit's ruling stands as the final word in this case: VMI's supper prayer practice was held unconstitutional, but Bunting keeps his qualified-immunity win and owes no damages. No further proceedings occur in this dispute. The broader procedural question Scalia raised, about how officials can appeal unfavorable constitutional rulings after winning on qualified immunity, remained unresolved and unaddressed by the full Court at this time.
What this does not decide
The denial of certiorari is not a ruling on the merits of whether VMI's supper prayer was actually unconstitutional; the Fourth Circuit's holding on that question was left undisturbed but was never reviewed or endorsed by the Supreme Court itself. The Court also did not resolve whether officials who win qualified immunity can ever appeal an adverse constitutional ruling.
Concurrences and dissents
Concurrence — Justice Stevens
“In this case, by contrast, none of the parties has a present stake in the outcome.”Stevens explains why the case had become moot and unfit for Supreme Court review.
Stevens, joined by Ginsburg and Breyer, wrote to explain the denial of certiorari, identifying three reasons: the case was moot because the graduated cadets and retired official had no live stake left, there was no genuine circuit conflict since the ruling turned on VMI's unique culture, and he separately criticized the Court's own rule forcing courts to resolve constitutional questions before qualified immunity as unwise and the true source of the procedural problem Scalia identified.
Dissent — Justice Scalia
“The only explanation for the Court's refusal to resolve a Circuit conflict of such consequence is a perceived procedural tangle of the Court's own making.”Scalia argues the Court's own procedural rules, not the case's merits, caused the denial of review.
Scalia, joined by the Chief Justice, argued the Court should have granted review to resolve a genuine circuit split over applying prayer-coercion precedent to adults at a military school, and to fix a procedural trap: officials who win qualified immunity have no avenue to appeal an unfavorable constitutional ruling, letting such rulings escape Supreme Court review while still binding future officials. He disputed Stevens's mootness and no-conflict rationales as mistaken or beside the point.
How the Court got there
The legal reasoning, step by step
- Justice Stevens, explaining why the Court denied review, reasoned that the case had become moot, meaning there was no longer a live dispute for the Court to resolve: the cadets had graduated, ending any need for a court order about the prayer, and Bunting had retired, so he would not be personally affected by whether VMI kept the tradition.
- Stevens distinguished this case from an earlier decision, Erie v. Pap's A.M., where the Court had refused to dismiss a similar case as moot because the business owner who challenged a nudity ban could still resume the same business; here, by contrast, no court order was blocking VMI from restarting the prayer, so neither side had an ongoing stake.
- Stevens further reasoned that even though other appeals courts had upheld prayer at graduation ceremonies at ordinary state universities, the Fourth Circuit's ruling did not create a genuine conflict, because it turned on VMI's unusually strict, conformity-focused military culture rather than a disagreement over the general legal rule.
- Justice Scalia, dissenting, argued that the Court's own rule requiring judges to decide the constitutional question before qualified immunity creates a trap: government officials who win on qualified immunity have no way to appeal an unfavorable constitutional ruling, even though that ruling will bind them and their successors going forward.
- Scalia concluded that this procedural gap was an added reason to grant review rather than a reason to avoid it, since only the Supreme Court could clarify whether such rulings are appealable at all.
Doctrinal impact
Cases affected by this decision
Distinguishes Erie v. Pap's A. M. (529 U. S. 277)
Stevens says this case lacks the ongoing stakes and gamesmanship concerns that kept the earlier nude-dancing case alive.