Via this post from TalkLeft, the U.S. Supreme Court has denied certiorari in the case of the VMI dinner prayer, which the Fourth Circuit held was unconstitutional. This How Appealing post includes a link to the dissenting opinion by Justice Scalia, joined by Chief Justice Rehnquist.
The dissent talks about the merits-first order of dealing with qualified immunity issues in section 1983 cases. In such cases, the courts are supposed to first decide whether plaintiff has alleged a constitutional violation, before proceeding to the question of whether the plaintiff's constitutional right was clearly established at the time the defendant acted. The Fourth Circuit affirmed qualified immunity for the superintendent of VMI in the dinner prayer case. So, since he was the winner on the money damages issue, it was not so easy for him to be the appellant before the Supreme Court, but Justice Scalia tried to explain that this was not an insurmountable obstacle in qualified immunity cases. Otherwise, the merits determination would not make it to the Supreme Court, which outcome would more or less be the opposite of what was intended the merit-first rule, to prevent the defendants from winning over and over on the "clearly established" element because the law never would be made clear.