Justice Antonin Scalia told Bender it was a "great leap" to say that the funds are "government funds."
He pointed out that the money is generated from a tax credit. "This money has never been in government coffers," Scalia said.
Justice Anthony Kennedy also expressed some skepticism. "I have some difficulty that any money that the government doesn't take from me is still the government's money."
Bender held fast to his argument, saying, "If there were no state income tax, there would be no tax credit program."
In the audience today was Pastor Glenn Dennard, a parent whose children received scholarships from one of the STOs, called the Arizona School Choice Trust.
Since 1998, Dennard and his wife, Rhonda, have taken advantage of the law that allowed five of their six children to attend private school.
"When I learned about the program," he said before the Supreme Court hearing, "I said, 'What a blessing,' an organization with the sole purpose of allowing people who wouldn't ordinarily have access to the best schools, access to the best."
Timothy D. Keller, an attorney for the Institute for Justice, represents the Dennards. "These are real children, the court's decision will have real consequences on their educational futures," he said.
"It means a tremendous amount to the parents participating in this program to be able to choose the school that will best meet their child's unique educational needs. "
The Court will decide the case by the spring.