A judge must reasonably find that a plaintiff's claim plausibly asserts an immediate and direct harm caused by the defendant in order to have jurisdiction by authority of the United States Constitution, which Judge Silver swore an oath to uphold. Judge Silver must ensure the plaintiff explicitly alleges that harm and she must adjudge (not implicitly assume) it to be reasonably plausible BEFORE a trial. Explicit, specific, immediate, and direct harm is a prerequisite of jurisdiction.
At least Wake and Bybee were smart enough to include harm in their analysis, though they made the inexcusable error of implicitly assuming harm... In contrast, Judge Silver has decided she is not bound by the Constitution and is going to trial without explicit identification of harm as a precondition to have a trial, but rather harm is something she might stumble upon AFTER the trial is finished.
From 15 Aug:
THE COURT: Well, I disagree with you on that. If that's your position [that immediate and direct harm is necessary] as to why or why not there is [Article III] jurisdiction, then I -- I disagree with you. Whether or not there's injury is a decision to be made after the case is presented and the defense is presented.
At the risk of pilling on a Judge that is drowning, the Judge does not hold a trial to discover harm, but instead holds trials to lawfully determine if a plausible, explicit claim made by the plaintiff is indeed true, in accordance with strict rules that ensure due process..
Right now, it's doubtful that Judge Silver has enough vowels to spell "due". 😀