WASHINGTON -- Retired Supreme Court Justice Harry A. Blackmun -- a quiet, modest and religious man who came to be adored and damned for a single act of judging, the abortion decision of 1973 -- died yesterday. He was 90.

Five years after he retired at the end of nearly a quarter-century on the court, Mr. Blackmun died at 1 a.m. at a hospital in Arlington, Va., of complications after hip-replacement surgery. He had broken his hip late last month in a fall at his apartment in Arlington.

Mr. Blackmun joined the court as a reliable conservative ally of Chief Justice Warren E. Burger and left it as a predictable liberal.

By the time he retired, Mr. Blackmun had become sadly reconciled to the fact that despite 3,875 cases considered over a span of 24 years, he would be remembered mainly, perhaps only, for one decision, Roe vs. Wade. He wrote the opinion in which the court, by a 7-2 vote, ruled that abortion was a fundamental right guaranteed by the Constitution.

Until that decision, the question of whether abortion was legal was left to each state.

With the decision, Mr. Blackmun became a hero of liberation to the women's rights movement and a villain to the most ardent abortion foes.

"I will carry it to my grave as the author of Roe vs. Wade," Mr. Blackmun said not long ago. Apart from a minor revision, he said, "I would write the same opinion today; my views haven't changed." He added, "It was a major blow for the emancipation of women."

He likened Roe vs. Wade to some of the court's greatest rulings, saying that "it brought into the consciousness of the public new concepts of what the Constitution is all about."

The ruling marked the boldest use the court has ever made of a constitutional "right of privacy," which is not mentioned explicitly in the Constitution but was traced by Mr. Blackmun to a variety of constitutional phrases and court rulings on personal autonomy dating to 1891.

The dissenters in Roe and some constitutional scholars treated the ruling as an exercise of raw judicial power without any foundation in the Constitution.

'Little people'

To those who love Mr. Blackmun for that ruling, it was the highlight of what they called "a jurisprudence of compassion," a repeatedly expressed concern for "little people in the real world." Of those "little people," he once said, "All the underdogs, being pushed around, they deserve a fair shake."

Those who hate Mr. Blackmun for Roe were still, after his retirement, writing scathing letters of denunciation, all of which Mr. Blackmun read.

"To this day," he said two years ago, "we get four or five letters a week, most very critical. I don't like to have a secretary tell me what I should read. The letters addressed to me should be seen by me."

Reserved and unassuming, Mr. Blackmun once said of his career, "A lot of these things happened just by accident. As [the late Justice] Tom Clark put it, I just happened to be on the corner when the bus came by."

Until recently, Mr. Blackmun returned often to the Supreme Court, for breakfast with a law clerk and his secretary, and occasionally to sit in on the court's oral arguments.

President Clinton, who chose Blackmun's successor, Stephen G. Breyer, praised Mr. Blackmun for his "uncanny feel for the human element that lies just beneath the surface of all serious legal argument."

Mr. Blackmun's gentle sense of humor, often directed at himself, showed in his frequent references to the fact that he was President Richard M. Nixon's third choice for the Supreme Court in 1970 after two other, more controversial nominees, Clement F. Haynsworth Jr. and G. Harrold Carswell, had been rejected by the Senate.

"When my name came up," he once recalled, "a scarecrow could have been confirmed. The Senate wanted to get it over with."

Of his first encounter with Mr. Nixon, Mr. Blackmun said that the president "must have wondered who this curious jerk from the Midwest was." Up to that point, he had been virtually unknown, a highly successful lawyer in his native Minnesota who for 10 years ran the legal affairs of the Mayo Clinic in Rochester and a federal appeals court judge.

After Justice Anthony M. Kennedy joined him on the court, Mr. Blackmun teased his junior colleague for having the same fate: another third choice after preferred nominees did not make it.

Though an intensely private person, Mr. Blackmun became a public chronicler of the court's work, frequently sharing inside stories of court life with his audiences. For 18 years, he led an Aspen Institute seminar in Colorado on justice and society, and seminar participants were treated to many of the court's secrets, along with Dorothy Blackmun's good-humored gibes at her husband's colleagues.

Throughout his time on the court, Mr. Blackmun fretted that Roe vs. Wade would not survive. He was only partly gratified when the court refused to overrule the decision in 1992 but cut it back significantly. In retirement, he continued to worry about its fate, saying, "Five votes on the court are on the incline to the right. The court is basically conservative. That's why I'm pessimistic."

While on the court, he became a passionate defender of the abortion decision. In one of his rare public displays of anger, he chastised a Reagan administration lawyer from the bench for advocating the overruling of Roe.

'Poor Joshua!'

Although Mr. Blackmun's name will be joined in history with Roe, one of his most eloquent judicial statements -- one that associates him with "the underdogs" whose cause he championed -- was a simple, sad phrase written in another case: "Poor Joshua!"

Included in a dissenting opinion in 1989, the comment referred to a 4-year-old boy who was allowed to remain in the custody of his father, who had severely beaten him, despite complaints of abuse to child-welfare officials. The court ruled that those officials could not be sued for the harm the father did to the boy.

" 'Poor Joshua' -- those two words I put in a close to final draft [of his dissent]," Mr. Blackmun recalled. "I'm glad I did; it needed personalizing."

He often strove to personalize his part of the court's work. Dissenting in a death penalty case shortly before his retirement in 1994, Mr. Blackmun began his opinion:

"On February 24, 1994, at approximately 1: 00 a.m., Bruce Edwin Callins will be executed by the state of Texas. Intravenous tubes attached to his arms will carry the instrument of death, a toxic fluid designed specifically for the purpose of killing human beings. The witnesses, standing a few feet away, will behold Callins, no longer a defendant, an appellant, or a petitioner, but a man, strapped to a gurney, and seconds away from extinction.

"Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die."

A change of heart

It was in that opinion that Mr. Blackmun, then 85, announced that he had changed his mind after 20 years.

"From this day forward," he announced, "I no longer shall tinker with the machinery of death." After more than two decades of trying to help the court find what he would consider a fair way to carry out the death penalty, he said he had concluded that was "a delusion." He added, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." He would no longer support any death sentence, he said.

It marked the final conversion from a former conservative appellate judge to one of the Supreme Court's most predictable liberals. In his early days on the court he was considered and widely labeled a "Minnesota Twin" to conservative Chief Justice Burger, a fellow St. Paul native. Over time, Blackmun became closely allied with liberal Justices William J. Brennan Jr. and Thurgood Marshall.

Mr. Brennan threw his arm around Mr. Blackmun's shoulder as they walked down a corridor one day and said, "Harry, us liberals have to stick together."

Although he had helped the court make much history, especially constitutional history, Mr. Blackmun said his "favorite case of all time" was his opinion for the court in a 1972 case involving Curt Flood, a star outfielder for the St. Louis Cardinals. The court reaffirmed major league baseball's immunity to the antitrust laws.

Baseball fan

In a strange opening section for a court opinion, Mr. Blackmun listed scores of names of baseball greats, simply to memorialize them. "In Part I, I took a sentimental journey," he recalled later. He said some of his colleagues did not like the idea and years afterward remained "rather stiff-necked about it."

A devout baseball fan (his favorite team was the Twins, though he often wore a baseball cap with the logo of the fictional Lake Wobegon Whippets), Mr. Blackmun said his favorite player "was a minor-leaguer, Charlie Hall, a right-hander who used to mow them down."

Mr. Blackmun's law clerks once gave him a baseball card with the justice's picture on it, commemorating his shift toward liberalism. The back of the card read:

"Bats left, throws left. Came up from Minnesota as a Righty, and moved left. But he says 'They moved the Stadium.' "

Methodist lay reader

In his private life, Mr. Blackmun was a lay reader in the Methodist Church but did not make a public display of his faith. At one point, reminded that he had spoken to prayer breakfasts, he responded, "That does not make you devout."

Mr. Blackmun was devoted to his wife, Dorothy, whom he often referred to romantically as "Miss Dottie." Asked about her and about their life together, he would say, "She will have to answer for herself." Once, Mrs. Blackmun blurted out, "That's just Harry's way of saying he's diplomatic."

In addition to his wife, Mr. Blackmun is survived by three daughters, Nancy Blackmun of Framingham, Mass., and Sally Blackmun and Susan Blackmun, both of Orlando, Fla.; and five grandchildren.

Although outsiders frequently speculated that Mr. Blackmun's conversion into a strong advocate of women's rights resulted from the influence of his wife and daughters, he insisted that "it is a tribute to Dottie and our three girls that they never tried to influence any of my decisions. We just didn't discuss them."

Some of his attitudes about women's emerging role, he said, could be traced to his years in a Minnesota law firm after it admitted its first female partner. "We learned," he recalled, "that male dominance was not the answer to everything."

Pub Date: 3/05/99