The death penalty, like abortion, has seen the Supreme Court chip away at provision of this punishment in recent years. However, as could be expected from a more conservative court, there has been much left up to the states. Certainly, the case of Atkins v Virgina left it to the states to decide on the meaning of ‘mentally disabled’. However a Floridian inmate is now challenging his death row sentence claiming that he is ‘mentally disabled’ and therefore ineligible for this punishment. The case has yet to be decided but it could lead to the court being more activist in it’s approach if it decides to put down a meaning to this term of ‘mentally disabled’ on a national level, rather than leaving it to the states.