If the 861 argument had a factual basis, the appellate level would rule in its favor. Then Congress would rewrite the section and that would be the end of it.
There actually is no reason to believe otherwise. Judges income is not dependent upon the kind of tax in existence, judges do not like income taxes anymore than anyone else, and judges would be more than happy to be rid of dealing with folks like yourselves. Unfortunately for TP'rs, most judges do indeed have some degree of integrity in spite of TP rumors to the contrary and are not about to change law for the mere sake of not liking it.
Changing law belongs to Congress.