In Bunting v. Mellen, 541 U.S. 1019 (2004) the Court of Appeals followed the Saucier two-step protocol and first held that the Virginia Military Institute's use of the word God in a supper roll call ceremony violated the Establishment Clause, but then granted the defendants qualified immunity because the law was not clearly established at the relevant time. Mellen v. Bunting, 327 F.3d 355, 365-376 (C.A.4 2003), cert. denied, 541 U.S. 1019 (2004). Although they had a judgment in their favor below, the defendants asked this Court to review the adverse constitutional ruling. Dissenting from the denial of certiorari, Justice SCALIA, joined by Chief Justice Rehnquist, criticized a perceived procedural tangle of the Court's own making. (541 U.S., at 1022.) The tangle arose from the Court's settled refusal to entertain an appeal by a party on an issue as to which he prevailed below, a practice that insulates from review adverse merits decisions that are locked inside favorable qualified immunity rulings. (Id., at 1022, 1023, 1024.) The Supreme Court said that "although the statute governing our certiorari jurisdiction permits application by 'any party' to a case in a federal court of appeals . . . our practice reflects a 'settled refusal' to entertain an appeal by a party on an issue as to which he prevailed."